Brief Fact Summary. Complainants met with respondent attorney and expressed their desire to have him represent them in an adoption proceeding. They later found a mother willing to place her child in adoption, and after meeting with the mother respondent recommended that another party adopt the child.
Synopsis of Rule of Law. In independent adoptions an attorney cannot represent multiple parties without disclosure and consent.
Issue. Did respondent violate the Rules by representing multiple parties to the adoption proceeding?
Held. Respondent violated the rules by representing multiple parties and failing to disclose the representation and gain the consent of the parties.
It is common for the parties to an independent adoption to retain an attorney to represent their individual interests. Despite the spirit of cooperation often present, conflict of interest situations are likely to arise. The interests of potential adoptive parents of the same child are always adverse to one another. Additionally, the interests of the adoptive parent may be adverse to the interests of the natural parents. The natural parents’ attorney has a duty to provide them with counsel regarding matters such as paternity issues, economic matters, and the legal effect of signing the consent to adopt. The attorney must counsel on the adoption decision right up until the natural parents consent. In potential conflict, the adoptive parents want the natural child to consent.
In some instances an attorney may be able to represent multiple parties in an adoption proceeding. Disciplinary Rules provide that a lawyer may represent multiple clients if it is obvious that he can adequately represent the interests of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each. This exception does not apply in the present case, because there is no evidence respondent complied with its provisions.
If respondent simultaneously had an attorney-client relationship with more than one of the parties involved, he violated the Rules. An attorney-client relationship does not require payment of a fee, but may be implied from the parties’ conduct. It is proved by showing the party sought and received advice and assistance from the attorney on matters pertinent to the legal profession. The test is a subjective one, with an important factor being whether the client thought an attorney-client relationship existed. This gives rise to a continuing duty.
Respondent violated the Rules because he had a duty to advocate for the Pietzes. He also violated the Rules by representing both the natural mother and the adoptive parents in an adoption proceeding. In independent adoptions an attorney cannot represent multiple parties without disclosure and consent. It is unclear from the record if respondent was only negligent in determining a conflict existed or if he actually knew of the conflict.
Discussion. This case demonstrates the Disciplinary Rules relating to conflict of interests in adoption proceedings and also provides a nice overview of what constitutes an attorney-client relationship.