Family Law Keyed to Weisberg

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Topic /161
In Re Petrie

Citation. In re Petrie, 154 Ariz. 295, 742 P.2d 796, 1987 Ariz. LEXIS 185 (Ariz. Sept. 15, 1987)

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.

Facts. Complainants, Gregory and Barbara Pietz, consulted with respondent attorney to express their interest in adopting a child. Respondent and Pietzes agreed that if the Pietzes located a baby for adoption, respondent would represent them. Pietzes received information from a friend that a child was available for adoption. Pietzes asked the friend to make an appointment for respondent to meet the natural mother and inform respondent that the mother was being referred by the Pietzes. She did so, and respondent met with the natural mother and her sister, advising them that he had a set of adoptive parents in mind. Respondent wrote the Pietzes, advising them that he recently interviewed the woman and that their name was given when the interview was arranged. In the letter respondent inquired as to if Pietzes were still interested. Respondent received a written response from Pietzes stating that they were interested, that they were certified by the State to adopt, and they were v
ery hopeful concerning the present situation. The letter disclosed knowledge of facts about the natural mother that respondent had not conveyed to them. Respondent interpreted the letter as equivocal because the Pietzes had questions about the adoption and fees. Respondent received a call from another couple who expressed an interest in adopting. In response to respondent’s inquiry, the natural mother’s sister stated that the mother had no obligation to the Pietzes. At respondent’s recommendation, the natural mother agreed to place the child with the second couple. The committee found that he recommended the placement because the couple was more cooperative and they were locally situated. Furthermore, respondent was not excited about having to make multiple appearances in another county on behalf of the Pietzes. When Pietzes learned of this development, they called respondent, and he advised them for the first time that he had recommended to the natural mother placement with s
omeone else. They told respondent that they had referred the child to him and that they wanted the child placed with them. Mr. Pietz initiated a complaint with the State Bar charging respondent with violation of two Disciplinary Rules requiring that the attorney refuse to accept or continue employment if the interests of another client may impair the independent professional judgment of the lawyer.

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.