Opinions

Ethics Opinion 366

Ethical Issues that Commonly Arise in Private Adoption Matters

 

Lawyers who represent clients, whether birth parents or prospective adoptive parents, in private or independent adoption proceedings in the District of Columbia must ensure their conduct conforms to the D.C. Rules of Professional Conduct. Private adoptions frequently give rise to a number of significant ethical obligations, not the least of which are duties arising under conflict of interest rules, that the lawyer must squarely address with his or her client or clients, often at the onset of the representation. In many instances, a lawyer will be required to obtain the informed consent of one or more clients, and in some circumstances that of former clients, regarding certain aspects of the representation, in order to commence or continue representation. Private adoption practitioners should be particularly mindful of ethical duties attendant to communications with unrepresented persons, as well as duties of confidentiality owed to both current and former clients.

Applicable Rules

·Rule1.0(e) – Informed Consent

·Rule 1.3 – Diligence and Zeal

·Rule 1.4 – Communication

·Rule 1.6 – Confidentiality of Information

·Rule 1.7 – Conflict of Interest: General

·Rule 1.8(e) – Conflict of Interest: Specific Rules

·Rule 1.9 – Conflict of Interest: Former Client

·Rule 4.3 – Dealing with Unrepresented Person

·Rule 5.4 – Professional Independence of a Lawyer

Inquiry

The Committee has been asked to provide guidance to the Bar on ethical considerations that commonly arise in "private adoptions," which are also referred to as "independent adoptions." For purposes of this opinion, these terms describe an adoption in which the birth parents have neither voluntarily relinquished their parental rights to an authorized public or private "child-placing agency"[1] nor had their parental rights involuntarily terminated.[2] These latter types of adoptions are outside the scope of this opinion.

A private adoption may present a number of issues that implicate the D.C. Rules of Professional Conduct ("D.C. Rules"), including: (1) accepting legal fees from a third party (typically, for representing the birth parent(s) from the person(s) seeking to adopt); (2) engaging in reciprocal client referrals among other adoption practitioners; (3) jointly representing both birth parents; (4) communicating with an unrepresented party (often an unrepresented birth parent, while either representing the prospective adoptive parent(s) or while representing the other birth parent, concerning the decision or procedures to place a child for adoption or to relinquish parental rights); and/or (5) representing a client in an adoption proceeding opposite a former client from a previous adoption proceeding. Before discussing the application of the ethics rules, we briefly describe the statutes and Superior Court procedural rules that govern private adoption proceedings in the District of Columbia.[3]

Background

Private adoption proceedings are initiated in the Superior Court's Family Division by a petition filed by person(s) seeking to adopt ("adoptive parent(s)" or "petitioner(s)").[4] The court may grant an adoption petition only after determining that "the adoption will be in the best interest of the prospective adoptee."[5] Resolution of this ultimate question requires the court to decide (1) whether "the prospective adoptee is physically, mentally, and otherwise suitable for adoption by the petitioner"; and (2) whether "the petitioner is fit and able to give the prospective adoptee a proper home and education."[6] To assist the court in assessing the petitioner's fitness, a "licensed child-placing agency" will conduct an investigation and report its findings.[7] The Committee is advised that in private adoptions the prospective adoptive parents typically retain the entity that will perform the study and pay its fees.

Consent to the adoption is required "from both [birth] parents, if they are both alive";[8] the "minority of a natural parent is not a bar to that parent's consent to adoption."[9] The court may appoint an attorney to represent "a parent or guardian whose consent is required … if the individual is financially unable to obtain adequate representation."[10] More commonly, however, the adoptive parents will pay the legal fees for a lawyer to represent each birth parent that desires representation. The Committee is informed that due to the relatively small number of lawyers regularly engaged in adoption practice, the same lawyers will often be facing each other, either having been retained by the petitioner or in representing a birth parent through referral from the petitioner's lawyer.

Consent to the adoption must also be obtained "from the prospective adoptee if he or she is fourteen years of age or older."[11] District of Columbia law does not provide a prospective adoptee with appointed counsel, even when the prospective adoptee's consent is required. The court has public funds available, but is not required by either statute or Superior Court Rule, to appoint a guardian ad litem ("GAL"),who is "charged with the representation of the child's best interest." Notwithstanding that every prospective adoptee, irrespective of age, is deemed a party to the proceeding under Super.Ct. Adoption Rule 17(a), if the court does not appoint a GAL for a prospective adoptee, there may be no lawyer – indeed, no person – involved in the proceeding who is specifically charged with "representation of the child's best interests."[12]

Consent and the resulting adoption have significant consequences for a consenting birth parent and an adoptee whose independent consent must be obtained: "A party who formally gives his consent to the proposed adoption … waives the requirement of notice" of the adoption proceedings in Superior Court;[13] and, pursuant to Super. Ct. Adoption Rule 17(a), the consenting person is no longer deemed a "party" to the adoption proceedings. Once a person consents to the adoption, that consent "may be revoked or withdrawn only after a judicial determination that the consent was not voluntarily given. The person moving to revoke or withdraw consent has the burden to establish that the consent was not voluntarily given."[14] The adoption effects a complete termination of birth parents' parental rights.[15]

As explained above, the law does not require the court to provide a prospective adoptee with legal representation in a private adoption proceeding, notwithstanding that the consequences of the proceeding are surely no less significant for the adoptee than for the birth parents, who are statutorily entitled to counsel. Although the proper administration of adoption proceedings is not a subject on which the Committee opines, the Committee recognizes, and discusses more fully in this opinion, that the D.C. Rules of Professional Conduct constrain lawyers representing other parties in the adoption proceeding from apprising the court of adverse information that may potentially affect the court's decision of whether "the adoption will be in the best interest of the prospective adoptee."  The absence of a lawyer for the prospective adoptee may, in some instances result in the court's being unaware of such information.

The Committee is aware that the law mandates appointment of a GAL in child neglect proceedings. In Opinion 295, the Committee noted the Court of Appeals' decision holding that "a child's GAL occupies a 'dual role' as neutral fact-finder for the judge and as zealous advocate on behalf of the child's best interests." See S.S. v. D.M., 597 A.2d 870, 875(1991).[16] Even though a GAL's precise function in a private adoption would differ from that of a GAL in a neglect proceeding, the appointment of a GAL could assist the court in determining whether placement of the prospective adoptee with the petitioner is in the adoptee's "best interests."

Discussion

Informed Consent

The concept of "informed consent" is central to a number of circumstances that confront practitioners in private adoption matters.[17] Because many ethical issues that arise in private adoptions require a lawyer to obtain the informed consent of one or more clients or former clients, it is critical that lawyers understand the terminology. To avoid the possibility of confusion in the discussion that follows, we note at the outset that the"informed consent" requirement under the D.C. Rules of Professional Conduct is wholly distinct from the statutory "consent to adoption" required by D.C. Code §16-304(b)(2)(A).[18]

Rule 1.0(e) states that "'Informed consent' denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct." Comment [2] addresses the content of a lawyer's communication to the (prospective) client in order to ensure that the client's consent to a proposed arrangement or action is "informed."

The lawyer must make reasonable efforts to ensure that the client or other person possesses information reasonably adequate to make an informed decision. Ordinarily, this will require communication that includes [1] a disclosure of the facts and circumstances giving rise to the situation, [2] any explanation reasonably necessary to inform the client or other person of the material advantages and disadvantages of the proposed course of conduct, and [3] a discussion of the client's or other person's options and alternatives. See Rule 1.0 Comment [2].

In addition to imposing these affirmative obligations of disclosure, explanation, and discussion, "[o]btaining informed consent will usually require an affirmative response by the client or other person."[19] We emphasize that "a lawyer may not assume consent from a client's or other person's silence."[20]

Finally, the comments to Rule 1.0(e) further explain that "[i]n determining whether the information and explanation provided are reasonably adequate, relevant factors include whether the client or other person is experienced in legal matters generally and in making decisions of the type involved." Thus, information sufficient to allow one person to give informed consent may not be sufficient for another. This opinion discusses the practical application and requirements for obtaining informed consent in the context of specific issues that may arise in these types of representations.

Representing Birth Parents When Legal Fees are Paid by Party Seeking to Adopt

It is a common practice for the lawyer who represents the person(s) filing the adoption petition to recommend a lawyer or lawyers to represent either or both of the birth parents and for the petitioner to pay the fees for the birth parents' lawyer(s). A lawyer who accepts such referrals under these conditions must comply with Rules 1.8(e) and 5.4(c).

Rule 1.8(e)states:

A lawyer shall not accept compensation for representing a client from one other than the client unless: (1) The client gives informed consent after consultation; (2) There is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship; and (3) Information relating to representation of a client is protected as required by D.C. Rule 1.6. 

Rule 5.4(c) parallels Rule 1.8(e)(2) and states:

A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer's professional judgment in rendering such legal services.

Comment [10] to Rule 1.8 notes that "third-party payers frequently have interests that differ from those of the client, including interests in minimizing the amount spent on the representation and in learning how the representation is progressing." Because of this potential disparity in interests, "lawyers are prohibited from accepting or continuing such representations unless the lawyer determines that there will be no interference with the lawyer's independent professional judgment and there is informed consent from the client." Rules 1.8(e)(2) and 5.4(c) require that the lawyer not permit the adoptive parents (or the attorney representing the adoptive parents) to "direct or regulate the lawyer's professional judgment" in advising her birth parent client regarding the adoption or otherwise "interfere" in the relationship with the client.

Even when a lawyer is satisfied that she can maintain the independent judgment required by Rules 1.8(e)(2) and 5.4(c), Rule 1.8(e)(1) prohibits acceptance of fees from a third party unless the client gives informed consent to the arrangement. Thus, at a minimum "[p]aragraph (e) requires disclosure of the fact that the lawyer's services are being paid for by a third party."[21] For a client's consent to be "informed,"however, there must be "a discussion of the client's ... options and alternatives" and an "explanation ... of material advantages and disadvantages of the proposed course of conduct."[22] An indigent birth parent must be informed that court-appointed counsel is available under D.C. Code § 16-316(a) as an alternative to accepting a lawyer whose fees are paid for by the adoptive parents; although the lawyer is free to fairly state her opinion regarding the advantages of not having a court-appointed lawyer, the client must be told that she has a choice and be provided with sufficient information to make that choice intelligently.

The representation and fee arrangement must also conform to the requirements of Rule 1.7 concerning conflict of interest,[23] which prohibits representation of a client "if … [t]he lawyer's professional judgment on behalf of the client will be or reasonably may be adversely affected by ... the lawyer's own financial, business, property, or personal interests."[24] Under Rule 1.7(b)(4), a conflict of interest exists if there is a significant risk that the lawyer's representation will be adversely affected by the lawyer's own interest in the fee arrangement.[25]

Whether the fee arrangement creates such a risk is an objective determination: Would an "objective observer" have a "reasonable doubt" that the representation can be "wholeheartedly and zealously" undertaken?[26] If such an objective reasonable doubt exists, a lawyer must comply with the waiver and informed consent mandates of Rule 1.7(c)(1) and (2) before commencing representation.

Finally, Rule 1.8(e)(3) provides that a lawyer whose representation of a birth parent will be paid for by the adoptive parents must comply with the confidentiality provisions of Rule 1.6, which prohibit a lawyer from "revealing" a client"confidence or secret" and from using a confidence or secret "to the disadvantage of the client" or "for the advantage of the lawyer or of a third person."[27]

Reciprocal Referrals Among Private Adoption Attorneys

As noted earlier, the Committee understands that in private adoption practice, as in a number of other practice areas, there are informal groups of lawyers who engage in reciprocal referrals; that is, a lawyer who represents the adoptive parents in one matter will refer the birth parent(s) to a colleague, who may reciprocate when the roles are reversed. The Committee emphasizes that the D.C. Rules do not prohibit such relationships among lawyers; indeed, the Committee recognizes that they are inevitable and may inure to a client's benefit. Nonetheless, such relationships can contribute to a "reasonable doubt" in the mind of an "objective observer" whether a lawyer's financial interest in continuing to receive referrals from colleagues could interfere with the lawyer's "wholehearted and zealous" representation of a client in the event that the client takes a position that is not the one preferred by the client of the lawyer who made the referral.

Because one of the principles underlying Rules 1.7(b) and (c) is that "the client as well as the lawyer must have the opportunity to judge and be satisfied that [wholehearted and zealous] representation can be provided,"[28] a prudent lawyer will, in most cases, treat a representation that stems from a"reciprocal referral relationship" as raising a conflict under Rule 1.7(b)(4) and will disclose "the existence and nature of the possible conflict and the possible adverse consequences of such representation,"[29] so that the client can consider the issue and provide the informed consent needed for the lawyer to undertake the representation.

In discussing this matter (and all matters that require the client's informed consent to a proposed action) with the prospective client, a lawyer who proposes to represent a birth parent must consider the prospective client's age (perhaps a minor), sophistication in legal matters (often minimal), and the stress presented by the client's circumstances of relinquishing parental rights. The lawyer must tailor the substance and delivery of the disclosure to ensure that the client appreciates the decision she is making.[30]

Representation of More than One Birth Parent

Because the consent of both birth parents is required (absent involuntary termination of either's parental rights), each may want legal representation in deciding whether to consent to the adoption or, if consent is withheld, in mounting an opposition.[31] As we stated in Opinion 296, although the D.C. Rules do not prohibit joint representation, "[a] necessary predicate to a decision to undertake joint representation is an initial determination that the interests of the joint clients can be pursued without conflict."[32] We also cautioned, however, that a lawyer who is considering undertaking joint representation must keep in mind that "[n]o matter how consistent the apparent interests of clients in a joint representation may appear at the onset … [joint representation] poses inherent risks of future conflicts of interest."[33] Moreover, a lawyer "should be mindful that if the common representation fails because the potentially adverse interests cannot be reconciled, the result can be additional cost, embarrassment and recrimination."[34]

Absolute Prohibition of Representation: Adverse Interests Between Birth Parents

Turning first to the prohibition in Rule 1.7(a) against "advanc[ing] two or more adverse positions in the same matter," lawyers must remember that this prohibition prohibits joint representation not only when there are conflicting opinions regarding any aspect of the prospective adoption but also when the birth parents seek representation in order to resolve their disagreement(s). In Opinion 243, we concluded that Rule 1.7(a) did not permit "the joint representation of a divorcing husband and wife who seek assistance in resolving their disagreement as to the terms of the dissolution of their marriage." The Committee stated: "We believe that such joint representation would place too great a strain on the fundamental duty of loyalty to individual clients that undergirds our ethical rules."[35] Our reasoning in that opinion applies with equal force to a lawyer's prospective joint representation of birth parents when the lawyer is aware that they have adverse positions on matters involved in the adoption proceeding.

Conditional Prohibition: Informed Consent to Joint Representation

When birth parents seek joint representation and there is no such adversity in their positions regarding the adoption, a lawyer must, nonetheless, consult "with each client concerning the implications of the common representation and obtain[] each client's [informed] consent"[36] to the joint representation before agreeing to undertake it. We take this opportunity to review relevant provisions of the D.C. Rules of Professional Conduct in the context of joint representations to ensure that lawyers' consultations with their prospective clients address fully "the implications of the common representation" and that clients who consent to joint representation have been adequately informed of the actual and potential consequences of the decision.

As we stated in Opinion 296, "[a] joint representation in and of itself does not alter the lawyer's ethical duties ["of loyalty and confidentiality," as well as "the duty to inform"] to each client, including the duty to protect each client's confidences."(emphasis added). That opinion described the "delicate balance"a lawyer must maintain in fulfilling her obligations to each client under both Rule1.4 (Communication) and Rule 1.6 (Confidentiality of Information), and cautioned that "[i]f the balance cannot be maintained, the common representation is improper."[37] We reiterate here this critical point: "In a common representation, the lawyer is still required both to keep each client adequately informed and to maintain confidentiality of information relating to the representation …."[38]

Specifically, Rule 1.4 requires a lawyer to "keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information" and to "explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation."[39] This means that "[a] client is entitled to whatever information the client wishes about all aspects of the subject matter of the representation unless the client expressly consents not to have certain information passed on."[40] On the other hand, Rule 1.6 requires that a lawyer not: "(1) reveal a confidence or secret of the lawyer's client; (2) use a confidence or secret of the lawyer's client to the disadvantage of the client; or (3) use a confidence or secret of the lawyer's client for the advantage of the lawyer or of a third person."

Comment [16] to Rule 1.6 addresses the tension that joint representation creates between a lawyer's obligation to maintain client confidentiality and her obligation to keep a client fully informed:

As to the duty of confidentiality, continued common representation will almost certainly be inadequate if one client asks the lawyer not to disclose to the other client information relevant to the common representation. This is so because the lawyer has an equal duty of loyalty to each client, and each client has the right to be informed of anything bearing on the representation that might affect that client's interests and the right to expect that the lawyer will use that information to that client's benefit. See D.C. Rule 1.4 (emphasis added).[41]

In the context of joint representation of birth parents,[42] the consultation regarding "the implications of the common representation" must include a discussion of the following points. First, the prospective clients must be made aware of the risk that a future disagreement between them could result in the lawyer having to withdraw from both representations, and that each would have to then find a new lawyer, which in most circumstances will delay the final resolution of the adoption proceeding and require additional expenditures of their time. Second, the lawyer must ensure that each prospective client understands that "[w]ith regard to the attorney-client privilege,the prevailing D.C. rule is that, as between commonly represented clients, the privilege does not attach."[43] Third, as we said in Opinion 327, it is essential that the lawyer "carefully explain to all clients in a joint representation that, when they agree that any relevant or material information may be shared with one another, they cannot expect that any relevant or material confidential information they may subsequently reveal to the lawyer will be kept from the other co-clients," and that the lawyer "may have to withdraw from any or all representations if one client later objects to continued common representation or sharing of such information."[44]

Lawyers must also advise each client that there are alternatives to joint representation. As noted, separate court-appointed counsel is available for each indigent birth parent. In addition, the Committee has been advised that adoptive parents will often fund separate legal counsel for each birth parent if requested to do so. Informed consent requires that lawyers explain to the prospective client(s) the benefits of separate counsel. This may include explaining that there are mechanisms available that enable separate lawyers to share such information as each client agrees to share while protecting confidences and secrets and maintaining each person's attorney-client privilege.

Although Rule 1.7 does not impose a requirement that either the lawyer's explanations or the client's decision concerning joint representation be in writing, the Committee noted in Opinion 296 that former Rule 2.2 imposed a writing requirement and the reasons for the requirement:

Comment [2] to Rule 2.2 underscores that the explanation of risks and consent must be in writing because "the potential for confusion is so great." A written explanation requires the lawyer to "focus specifically on those risks" and educates the client to "risks that many clients may not otherwise comprehend."[45]

After pointing out that the reasons for the writing requirement in Rule 2.2 applied equally to "joint representations of any kind," we concluded:

The best practice is clearly to advise clients at the outset of a representation of the potential for ethical conflicts ahead. Written disclosure of potential effects of joint representation and written consent can substantially mitigate, if not eliminate, the ethical tensions inherent in common representation.[46]

Communication with an Unrepresented Birth Parent

The Committee has been advised that lawyers who practice adoption law confront with some regularity two circumstances that involve communication with an unrepresented person. We understand that it is not uncommon for a birth mother to decline the opportunity to consult with an attorney before executing the statutory consent form that terminates her parental rights.[47] Because someone has to obtain the executed form for the adoption to proceed, the Committee understands that the task of obtaining the requisite consent often falls to the attorney who represents the prospective adoptive parents. Another situation that arises involves communications between an unrepresented birth parent and a lawyer who represents one of the other parties, usually the lawyer who represents the other birth parent.

Both scenarios are governed by Rule 4.3 (Communication with an Unrepresented Person). Rule 4.3(a)(1) prohibits "giving advice to the unrepresented person other than the advice to secure counsel, if the interests of such person are or have a reasonable possibility of being in conflict with the interests of the lawyer's client" (emphasis added). In addition, Rule 4.3(a)(2) provides that a lawyer may not "state or imply to unrepresented persons whose interests are not in conflict with the interests of the lawyer's client that the lawyer is disinterested."

Although an adoptive parent's lawyer tasked with obtaining an unrepresented birth parent's consent to the adoption may subjectively believe that there is no conflict between the interests of the unrepresented birth parent and the lawyer's client, obtaining a birth parent's formal consent is the essential step in a proceeding that will result, if the court grants the adoption petition, in the transfer of parental rights from the unrepresented birth parent to the lawyer's client(s). Under these circumstances, a prudent lawyer will treat the birth parent as someone whose interests "are or have a reasonable possibility of being in conflict with the interests of the lawyer's client."

Therefore, the lawyer must make clear that she represents the prospective adoptive parent(s), that the lawyer's role is to assist the adoptive parent(s) in adopting the birth parent's child, and that the purpose of her communicating with the birth parent is to obtain the birth parent's consent to the adoption, which, if granted, will terminate the birth parent's parental rights. We emphasize that when the lawyer who represents the adoptive parent(s) is meeting with an unrepresented birth parent for this purpose, the lawyer may not advise the unrepresented birth parent on any matter. If the birth parent poses a question that requires other than an objective answer (e.g., what happens next, who is the judge assigned to the matter), the adoptive parents' lawyer must limit her response to advising the birth parent that he or she may want to talk with a lawyer and the available options for obtaining one.

In the second scenario, in which a lawyer who represents one birth parent is communicating with the other, unrepresented birth parent, if the purpose of the communication is to obtain the consent of the unrepresented birth parent to the adoption, our previous analysis leads to the same result: A lawyer is limited to identifying herself, identifying her client, and stating the reason for the communication. The lawyer may not counsel the unrepresented birth parent on the wisdom of giving consent, may answer questions only of the type described above, and, in response to other questions, must limit her response to advising the birth parent that he or she may want to talk with a lawyer and the available options for obtaining one. If the communication is for any purpose other than obtaining the unrepresented person's consent to the adoption, and if the lawyer has no reason to believe that the birth parents have adverse interests or positions in regard to the adoption, there is arguably greater leeway for the lawyer to conclude that the unrepresented parent's interests do not conflict with those of the lawyer's client. However, the prudent practice is for the lawyer to limit her "advice" to a suggestion that the unrepresented person may wish to obtain counsel.

Separate Representation of Prospective Adoptee

A lawyer who represents a birth parent does not and cannot also represent the prospective adoptee. Because the interests of a birth parent and the prospective adoptee could differ with respect to material matters, for example,the relevance of information pertaining to the suitability of the adoptive parents or another issue that may affect whether the adoption is in the prospective adoptee's best interest, joint representation raises a conflict under Rules 1.7(b)(2), (3) and (4) which, under Rule 1.7(c)(1), would require each client's informed consent before the attorney could undertake the joint representation. When the prospective adoptee is a newborn or very young child, obtaining such informed consent is, of course, a practical impossibility.

Furthermore, when the potential joint representation involves a birth parent and an unrepresented minor adoptee of any age, the inherent uncertainty of whether the prospective adoptee has voluntarily given her informed consent to the joint representation as well as the concerns discussed herein with respect to the joint representation of birth parents,[48] which are particularly acute in this context, make joint representation of a birth parent and a prospective adoptee rarely, if ever, permissible.

Duty of Confidentiality Revisited   

A lawyer who represents a birth parent or an adoptive parent may fundamentally disagree with the client on whether certain information potentially relevant to the court's "best interests of the prospective adoptee" mandate should be brought to the court's attention. However, absent a circumstance that gives rise to one of the limited exceptions under Rule 1.6, a lawyer representing a party in an adoption may not apprise the court of information that the lawyer believes is relevant to the court's approval of the petition without first obtaining informed consent from his or her client.

As discussed extensively above, a lawyer has duties of confidentiality under Rule 1.6 that would prohibit a lawyer's voluntary use or revelation of client confidences or secrets except in narrowly defined circumstances.[49]  Rule 1.6(b) very broadly defines "confidence" as "information protected by the attorney-client privilege under applicable law," and "secret" as "other information gained in the professional relationship that the client has requested be held inviolate, or the disclosure of which would be embarrassing, or would be likely to be detrimental, to the client."

As such, if a lawyer becomes aware of information that may cause the lawyer, but not the lawyer's client, to question whether the prospective adoption is "in the best interest of the prospective adoptee," duties of confidentiality will typically foreclose the lawyer's bringing that information to the court ,as such information is clearly a client "secret."[50] The lawyer must abide by the client's decision regardless of the lawyer's disagreement. However, in a particularly unpalatable circumstance, a lawyer may seek to withdraw from the representation, but only if that can be done without "material adverse effect on the interests of the client," or if other another independent reason to withdraw exists under Rule 1.16.

Representing a Client in an Adoption Opposite a Former Client from a Previous Adoption

The Committee is informed that lawyers for whom adoption law is a primary or exclusive practice area are sometimes on the opposite side of an adoption proceeding from a former client in a previous adoption that did not involve the lawyer's current client. This situation is governed by Rule 1.9, which states:

A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent.

"Matters are 'substantially related' for purposes of this D.C. Rule if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client's position in the subsequent matter."[51]

It would be difficult to conceive of an adoption proceeding in which an attorney did not obtain "confidential factual information" about his client; in many instances, there is a substantial risk that such information could "materially advance" the position of the lawyer's new adoption client.[52] Therefore, Rule 1.9 requires informed consent of the former client to the subsequent representation if the interests of the former and the current client are "materially adverse."

Prudence suggests, however, that even when the interests of the former and current clients cannot reasonably be deemed "materially adverse," – that is, for example, both persons are on record independently as in favor the court's granting the adoption petition in the latter proceeding – a lawyer will obtain the former client's informed consent before agreeing to represent a person on the other side of the subsequent proceeding.

In Opinion 309, the Committee considered "whether advance waivers of conflicts of interest are permissible and, if so, whether there are requirements for such waivers additional to, or different from, those prescribed by Rules 1.7 and 1.9 for waivers generally." Only one small portion of Opinion 309—a footnote—is relevant to the instant discussion. In the footnote, the Committee was careful to distinguish between a waiver of conflict of interest for purposes of representation and a waiver of confidentiality by the former client:

Waivers permitting the adverse use or disclosure of confidential information, see D.C.Rule 1.6(c)-(d), may not be implied from waivers of conflicts of interest. Because of their considerable potential for mischief, waivers of confidentiality require particular scrutiny and may be invalid even when granted by sophisticated clients with counsel (in-house or outside) independent of the lawyer seeking the waiver.[53]

Accordingly, a former client's "current" waiver of a representational conflict under Rule 1.9 does not permit a lawyer to disclose or use for the benefit of the current client confidential information obtained about the former client during the former representation. Moreover, as noted in Opinion 309, any separate waiver by the former client of confidentiality under Rule 1.6 would be subject to "particular scrutiny" and might be found to be invalid. Accordingly, it may not be possible for the attorney to obtain an effective waiver of confidentiality from the former client that would permit the attorney to make use of the former client's confidential information to advance the position of the attorney's new adoption client.

If that confidential information were such that the current client would reasonably be entitled to know it under Rule 1.4 and have her lawyer use it in fulfilling the lawyer's obligations of diligence and zeal to the current client under Rule 1.3, the lawyer would need to obtain the current client's informed consent to having the information withheld. But if the lawyer is unable to disclose to the current client the former client's confidential information, the lawyer will likely be unable to obtain the current client's informed consent to the lawyer not using or revealing the information. See Comment [27] to Rule1.7(b) ("If a lawyer's obligation to one or another client or to others or some other consideration precludes making such full disclosure to all affected parties, that fact alone precludes undertaking the representation at issue."). Accordingly, prudence suggests that a lawyer should be extremely cautious in considering whether to undertake to represent a new client in a private adoption adverse to a former client.[54]

Conclusion

Lawyers engaged in private adoptions must ensure that they adhere to the mandates of the D.C. Rules, specifically those governing conflicts of interest, and that they make sufficient disclosures and explanations to obtain prospective client(s)' informed consent where the rules make that a prerequisite to undertaking a representation.

A lawyer for a birth parent may accept payment of legal fees from the adoptive parent(s) only after disclosing information – including information about any reciprocal referral relationship with the adoptive parents' lawyer – necessary to obtain the informed consent for this arrangement from the lawyer's client. Furthermore, a lawyer who accepts fees from the adoptive parents for representation of a birth parent must ensure that the fee arrangement does not affect her independent judgment in the representation of the client and must not disclose the confidences and secrets of her client without the informed consent of her client.

A lawyer may not represent both birth parents when the lawyer is aware at the outset that they differ in their positions in regard to the proposed adoption; nor may a lawyer engage in such joint representation for the purpose of helping birth parents to resolve any such disagreement. In circumstances in which the birth parents agree that the adoption petition should be granted, a lawyer must consider that there is an inherent tension that arises in a joint representation in fulfilling her obligations under both Rule 1.4 and Rule 1.6; she must explain these obligations and the potential consequences should differences between the clients' respective positions later arise; and she must obtain each client's informed consent to the joint representation.

A lawyer who represents only one birth parent may not give legal advice to the other birth parent. Likewise, a lawyer who represents the adoptive parents and is charged with obtaining the consent to adoption from an unrepresented birth parent may not give legal advice to that birth parent. In both circumstances, if the unrepresented person poses questions to the lawyer, the lawyer should restrict her advice to a recommendation to obtain counsel and the potential mechanisms for accomplishing this.

A lawyer who seeks to obtain a birth parent-client's written consent to the adoption must ensure that the client understands the consequences of such consent, including that it terminates both the client's involvement in the adoption proceedings and the client's parental rights. A lawyer who represents a birth parent does not and cannot jointly represent the prospective adoptee.[55]

Except in rare circumstances where an exception to Rule 1.6 applies, a lawyer must obtain the client's informed consent before disclosing to the court information obtained in the course of the representation that could contribute to the court's deciding that the adoption is not "in the best interests of the prospective adoptee." If the client declines to permit such disclosure, the lawyer must abide by the client's decision.

A lawyer who has represented either a birth parent or an adoptive parent in an adoption proceeding may represent a different, adverse client in a subsequent adoption proceeding involving the former client only if the lawyer obtains the informed consent of the former client to the subsequent representation. Because the waiver of conflicts of interest would not constitute a waiver of the former client's confidentiality protections under Rule 1.6, and considering the potential risks to the lawyer's ability to meet obligations that might arise under Rules 1.3 and 1.4 to the new client, prudence suggests that a lawyer should be extremely cautious in considering whether to undertake to represent a party in a private adoption in which a former client from a previous private adoption is on the other side.


 


 

[1] Such adoptions are typically referred to as "agency adoptions." In agency adoptions, the birth parents "relinquish parental rights" to a "licensed child-placing agency" for purposes of having the agency place the adoptee with adoptive parents; by statute "the agency is vested with parental rights and may consent to the adoption of the child pursuant to the statutes regulating adoption procedure." D.C. Code § 4-1406(a)(1). The relinquishment of parental rights to a child-placing agency prior to the adoption is governed by statute. See D.C.Code §§ 4-1401, et seq.

[2] See D.C. Code § 16-2320(a)(6) (termination following a finding of neglect). Although lawyers may be involved in the representation of a birth parent or an adoptee in the termination of parental rights proceedings, lawyers ordinarily are not involved in the ensuing adoption proceedings that will follow if a court terminates parental rights.

[3] This Committee does not opine on questions of law outside of the D.C. Rules of Professional Conduct. The ethical questions presented in this inquiry, however, demand a contextual understanding of the statutory and procedural framework and of certain requirements that arise under substantive adoption law. The accompanying discussion of the statutes and court rules that govern adoptions in the District of Columbia reflects the Committee's understanding of relevant law for the sole purpose of analyzing the issues presented under the D.C. Rules of Professional Conduct.

[4] D.C. Code § 16-305.

[5] Id. § 16-309(b)(3); see, e.g., In re E.D.R., 772 A.2d 1156 (D.C. 2001).

[6] Id.§§ 16-309(b)(1)-(2).

[7] Id. § 16-307; Super. Ct. Adoption Rule 7(d). The Committee is informed that adoptive parents usually retain one of the licensed child-placing agencies that engage in agency adoptions to perform the requisite home study.

[8] D.C. Code §16-304(b)(2)(A). Section 16-304(d) ,however, establishes two exceptions to the statutory consent requirement to cover instances when a birth parent, after notice of the adoption petition, either (1) cannot be located; or (2) has abandoned the prospective adoptee and voluntarily failed to contribute to his support for a period of at least six months. In addition, under D.C. Code §16-304(e) the court may grant an adoption petition when it finds "after a hearing, that the consent or consents are withheld contrary to the best interest of the child."

[9] Id. §16-304(c).

[10] Id. § 16-316(a). The reference in the statute to "a guardian" as a potential recipient of appointed counsel "if the individual is financially unable to obtain adequate representation" is to a person in whose custody the prospective adoptee has been placed, not a guardian ad litem, who is always a lawyer.

[11] Id. §16-304(b)(1).

[12] Id. § 16-316(b). For a prospective adoptee "fourteen years of age or older," whose consent, like that of the birth parents, is required for the adoption to go forward, he or she will have no one to consult with in evaluating and interpreting the home study and in deciding whether to consent to the adoption if the court decides not to appoint a GAL. As we discuss below, an attorney who represents a birth parent does not – and cannot, consistent with D.C. Rule 1.7, simultaneously represent a prospective adoptee who is too young to give informed consent to joint representation. Additionally, we note that except in certain narrowly defined circumstances, an attorney who represents a birth parent cannot, in the absence of the informed consent of that client, apprise the court of adverse information that may potentially affect the court's decision whether "the adoption will be in the best interest of the prospective adoptee."

[13] Id. § 16-306(b). A lawyer who undertakes to obtain a client's consent to the adoption must explain and ensure the client appreciates the consequences of giving that consent. See D.C.Rule 1.4(b).

[14] Super. Ct. Adoption Rule70(a).

[15] D.C. Code § 16-312(a).

[16] D.C. Legal Ethics Opinion 295 (Restriction on Communications by a Lawyer Acting as Guardian Ad Litem in a Child Abuse and Neglect Proceeding) (2000).

[17] The concept of informed consent is independent from, and in addition to, a lawyer's general duty of communication arising under Rule 1.4. Rule 1.4(b) requires that "[a] lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation." The comments to Rule1.4 clarify that "[t]he lawyer must be particularly careful to ensure that decisions of the client are made only after the client has been informed of all relevant considerations" and that "[t]he lawyer must initiate and maintain the consultative and decision-making process if the client does not do so and must ensure that the ongoing process is thorough and complete." See D.C. Rule 1.4 Comments [2] and [3].

[18] See note 8 and the text accompanying notes13-15, supra, for a discussion of the consent requirement and the consequences of giving consent to the adoption.

[19] D.C. Rule 1.0, Comment[3].

[20] Id. Although Comment [3] to Rule 1.0 notes that "[a] number of D.C. Rules require that a person's consent be in writing," neither Rule 1.8(e)(1) nor Rule 1.7(c)(1) requires that a client's informed consent be memorialized by a writing. Nonetheless, this Committee has consistently advised that an attorney consider memorializing the disclosures to the client and the client's informed consent to the attorney's proposed action even where the D.C. Rules do not require the client's written consent. In this opinion we identify the prudential considerations that favor obtaining written consent when representing a person about to relinquish parental rights.

[21] D.C. Rule 1.8, Comment[10].

[22] D.C. Rule 1.0, Comment[2].

[23] D.C. Rule 1.8, Comment[10].

[24] D.C. Rule1.7(b)(4).

[25] D.C. Rule 1.8, Comment[11].

[26] D.C. Rule 1.7, Comment[7].

[27] D.C. Rule1.6(a)(1)-(3); D.C. Rule 1.8(e)(3) and Comment [10].

[28] D.C. Rule 1.7, Comment 7 ("The client has a right to disclosure of all relevant considerations and the opportunity to be the judge of its own interests.").

[29] D.C. Rule 1.7(c)(1).

[30] Comment [11] to D.C. Rule 1.8 recognizes that in some circumstances, for example, where the prospective client is experienced in obtaining legal services, disclosure of the "the fact of the payment and the identity of the third-party payer" may be sufficient to satisfy D.C. Rule 1.8(e). However, in dealing with a birth parent (particularly one who has not reached the age of majority) who is about to place a child for adoption and is unable to afford counsel, the lawyer should assume that a more fulsome explanation of the relationship with the referring lawyer is required in order to obtain the prospective client's informed consent to the representation under such circumstances. Cf. D.C. Rule 1.0, Comment [2] ("In determining whether the information and explanation provided are reasonably adequate, relevant factors include whether the client or other person is experienced in legal matters generally and in making decisions of the type involved.").

[31] With respect to the unwed natural father, if he "grasps an opportunity … to develop a relationship with his offspring … and accepts some measure of responsibility for the child's future," he has a constitutional right to participate in the adoption proceedings. Lehr v. Robertson, 463 U.S. 248, 261-62 (1983).

[32] D.C. Legal Ethics Opinion 296 (Joint Representation: Confidentiality of Information )(2000). Although LEO 296 was adopted before the 2007 D.C. Rules Amendments, its discussion of "the difficult ethical issues under D.C. Rule 1.7(b)(2) and (b)(3) posed by joint representations of any kind" is unaffected by the subsequent elimination of former D.C. Rule 2.2, which addressed the lawyer's role as intermediary, or the amendments to D.C. Rule 1.6(d), regarding a lawyer's revealing a client's confidences and secrets "[w]hen a client has used or is using a lawyer's services to further a crime or fraud."

[33] Id.

[34] D.C. Rule 1.7, Comment[14].

[35] D.C. LEO 243.

[36] D.C. LEO 296, discussing former Rule 2.2. The joint representation concerns identified in former Rule 2.2 and discussed in LEO 296 are captured in Comments [14]-[18] to Rule 1.7(b).

[37] D.C. Legal Ethics Opinion 296 (2000).

[38] Id.

[39] D.C. Rule 1.4(a) and (b).

[40] D.C. Rule 1.4, Comment[2] (emphasis added).

[41] As the Committee stated in Opinion 327, Rule 1.6(d)(1) permits a lawyer to reveal a client's confidence or secret when the client has provided informed consent to such disclosure. The Committee went on to point out that "[w]here the disclosing client has unambiguously consented to further disclosure [of a confidence or secret otherwise protected by Rule 1.6], a lawyer's duty of loyalty to and the duty to communicate with the non-disclosing client tips the balance in favor of disclosure. Indeed, in light of the disclosing client's consent, there is nothing left on the other side of the balance."

[42] As we noted previously in the discussion of the required disclosures concerning payment of fees by third parties (see notes 22-31 and accompanying text, supra), the substance of the disclosures will vary depending upon the context of the representation, the ages of the prospective clients, and their experience and sophistication in legal matters.

[43] D.C. Rule 1.7, Comment[15].

[44] D.C. Rule 1.7, Comment[16].

[45] D.C. LEO 296, quoting former D.C. Rule 2.2, Comment[2].

[46] Id.

[47] While we have not received similar information regarding birth fathers, we will assume that there is some percentage of them who take the same position. As we noted previously, supra note 13, once a birth parent executes a formal consent to adoption, that person is no longer a "party" to the adoption proceedings and waives notice of future proceedings. Thus, a birth parent who declines the opportunity to consult with counsel prior to formally consenting to the adoption is effectively waiving the right to have legal representation in connection with the adoption.

[48] See notes 31-46 and accompanying text.

[49] See D.C. Rule 1.6 (a).

[50] See note 12, supra, in which the Committee notes its concerns when there is no GAL appointed to represent a prospective adoptee. Presumably, in this circumstance the court engages in particularly close questioning of the agency that has evaluated the suitability of the prospective adoptive parents.

[51] D.C. Rule 1.9, Comment[3] (emphasis added).

[52] For example, a lawyer who previously represented the birth mother may have learned information about personal habits of the former client of which the new client (the adoptive parents) are unaware that could adversely affect the healthy development of the prospective adoptee, and which, if known, could cause the adoptive parents to withdraw the adoption petition. On the other hand, a lawyer who represents a birth parent and has represented the prospective adoptive parents in a previous adoption (or any matter in which she has learned confidential information) may have learned information about that party's financial situation or home life that might be relevant to the new client's assessment of the petitioner's suitability.

[53] D.C. Legal Ethics Opinion 309 (Advanced Waivers of Conflict of Interest) (2001), note 10 (citations omitted; emphasis added).

[54] A lawyer asked by the court to serve as a GAL for a prospective adoptee in a proceeding involving a former client should be disinclined to accept such an appointment for the same reasons.

[55] As we have observed, because there is no entitlement to legal representation by an adoptee in a private adoption proceeding, it is this Committee's understanding that unless a lawyer or GAL is appointed by the court, there is no one charged specifically with advocating on behalf of the adoptee. In those circumstances, the court's determination about whether the adoption is in the best interests of the child will be based on the home study of the independent agency, and any other evidence that may be introduced.

January 2014