Opinion #159. Conflicts of Interest in Adoption Proceedings

Issued by the Professional Ethics Commission

Date Issued: November 6, 1997

Facts

Adoption Agency is a not-for-profit, charitable organization. It is licensed by the State of Maine’s Department of Human Services. By charter, rule, and custom, its mission is to provide assistance to persons, often single natural parent (“Birthmother”), in connection with adoptions. It provides counseling to parents considering the voluntary surrender or placement of their children for adoption; it assists Birthmothers in explaining options ranging from abortion, to keeping the child, to adoption; it performs “home-studies” regarding prospective adopting parents; and, in connection with formal adoption proceedings, it assists parents surrendering or placing children for adoption. It obtains its funds through government grants, United Way allocations, donations, and fees paid as able by adopting parents in reimbursement for costs of adoption incurred by Adoption Agency.

The questions posed relate to two different proceedings. In a “Consent” proceeding, the Birthmother appears in court and consents to a petition for adoption of the child by specifically identified adoptive parents. In a “Surrender and Release” proceeding, the Birthmother appears in court and relinquishes all parental rights to the child, who is placed in the custody and control of Adoption Agency for the purpose of a subsequent adoption by some suitable person or persons. The Birthmother’s participation and action in each of these proceedings is fully voluntary, and the Birthmother in each case has the statutory right to revoke her consent during a three (3) day waiting period after giving her consent. The court must approve the adoption, and explain to the Birthmother the right of revocation, as well the availability of counseling, and other services, including appointed legal counsel.

Question

Can Lawyers who regularly represent an Adoption Agency (“Agency”) represent, at the request of Agency, both Agency and Birthmother in connection with either Consent or Surrender Release proceedings?

Analysis

Our answer to this question begins with Rule 3.4(c), the relevant portions of which state:

3.4(c) Conflict of Interest:

Simultaneous Representation.

(1) Representation Prohibited. Notwithstanding the consent of each affected client, a lawyer may not simultaneously represent, or continue to represent, more than one client in the same matter or group of substantially related matters when the matter or matters are the subject of litigation or any other proceeding for dispute resolution and the clients are opposing parties.

(2) Representation Permitted with Consent. In all other cases, if a conflict of interest exists, a lawyer may not undertake or continue simultaneous representation of more than one client except with the informed consent of each affected client to representation of the others. Consent is required even though representation will not occur in the same matter or in substantially related matters. Simultaneous representation in the same matter or substantially related matters is undertaken subject to the following additional conditions:

(i) The lawyer must reasonably believe (A) that each client will be able to make adequately informed decisions, and (B) that a disinterested lawyer would conclude that the risk of inadequate representation is not substantial, considering any special circumstances affecting the lawyer’s ability to provide adequate representation of each client, such as the fact that the clients may seek incompatible results or pursue mutually disadvantageous tactics, or that their adverse interests may outweigh their common interests.

(ii) While engaged in simultaneous representation, the lawyer shall consult with each client concerning the decisions to be made and the considerations relevant in making them, so that each client can make adequately informed decisions.

(iii) The lawyer shall terminate the simultaneous representation upon request of any client involved, or if any condition described in this paragraph (2) can no longer be met, and upon withdrawal shall cease to represent any of the clients in the matter or matters on which simultaneous representation was undertaken or in any substantially related matter, except with the consent of any clients who will no longer be represented.

We do not consider either type of adoption proceeding to present a situation in which simultaneous representation is per se prohibited under subsection (1). In a Consent proceeding, Agency is not even a party. And while Agency might fairly be considered a party in interest in a Surrender and Release proceeding, Agency and Birthmother are not “opposing parties.” Agency and Birthmother come before the court with no dispute, and seek the same relief. And either Agency or Birthmother can unilaterally decide not to participate in the proceeding.

We therefore focus our analysis on subsection (2). Does “conflict of interest” exist? Rule 3.4(b) provides that a “conflict of interest” is present “if there is a substantial risk that the lawyer’s representation of one client would be materially and adversely affected by the lawyer’s duties to another current client . . .” In this context, where Attorney and Birthmother seek the same relief, and where Agency’s relationship with Birthmother is such that, for example, Agency provides counseling to her, a reasonable argument could be made that no “conflict of interest” exists. We nevertheless conclude that a conflict of interest does exist because of the potential that Birthmother might begin to change her mind about proceeding with the adoption at a point when Agency has acquired, if nothing else, an institutional momentum towards completion of the adoption, particularly in a situation in which, if the adoption is completed, Agency will receive reimbursement for its expenses from the adoptive parents. While the likelihood of such an occurrence may not be great in view of Agency’s duties to Birthmother and its not-for-profit nature, the importance of the matter—irreversible relinquishment of parental rights—is so significant that we find the risk of conflicting duties to be “substantial” within the meaning of Rule 3.4(b)(1).

Resolution of this question, therefore, falls squarely within Rule 3.4(c)(2) in that a conflict exists, yet simultaneous representation is not per se prohibited. Application of the Rule 3.4(c)(2) standard may vary from case to case. Generally, though, on the facts described, whenever Lawyer is reasonably satisfied that Birthmother is able to make an adequately informed decision, and desires to go through with a surrender or consent, simultaneous representation of both Birthmother and Agency does not violate the Bar Rules. We so conclude for three principal reasons.

First, the fundamental and important issue confronting Birth-mother—whether to surrender her child to adoption—is an issue concerning which Lawyer plays little if any role. To the contrary, it is Agency itself that provides counseling on this issue, and the decision to proceed forward with adoption is made before Lawyer even arrives on the scene. Lawyer’s role here is not the role of a counselor or mediator in the making of a decision. Rather, Lawyer’s role here is largely ministerial.

Second, the issue concerning which Lawyer’s advice and skill are sought—how to make sure that the adoption is performed properly under the law—is an issue concerning which both Agency and Birthmother share a common goal, the attainment of which involves no bargaining between them.

Third, even though the matter involves a court proceeding, Birthmother’s participation in the proceeding is entirely voluntary, and the court itself is obligated to ensure that she is aware of that fact.

We also note that the Vermont Bar Association has reached a similar conclusion in an analogous situation. In Opinion No. 90-6, the Vermont Bar Association opined that an Agency attorney can assist a Birthmother (among others) in preparing the legal documents for an adoption, provided that the attorney discloses the attorney’s relationships with the agency. While Vermont Opinion No. 90-6 does not state that the attorney may actually represent Birthmother in the proceeding, we find no dispositive difference of substance in this context between preparing papers for Birthmother, and going to the hearing with her.

Of course the consent of both clients need be obtained, and informed. Here, the primary points to be disclosed to Birthmother are her continuing (until 3 days post-decree) right to terminate the proceeding or adoption and the extent, if any, to which Agency might receive funds if the adoption is completed. Lawyer should also address with both parties the fact that, if Birthmother desires to terminate or revoke her consent prior to or during the three day statutory period, Lawyer will so assist client without regard to any arguable interest of Agency to the contrary. Finally, Lawyer should advise both clients that the joint representation is limited to the adoption proceeding, that there will be no confidences and secrets as between the parties concerning the matter on which they are jointly represented, and that Lawyer will not represent either party as against the other in any other matter during the joint representation, related to the joint representation, or likely to involve confidences and secrets gained in the joint representation.


Enduring Ethics Opinion