UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.
Ethics Advisory Opinion 98-26
An attorney represents an adoption agency. Potential adoptive parents have asked this agency's attorney to represent them in an uncontested adoption action which will involve the agency. The adoptive parents would sign a document acknowledging that they are aware the attorney represents the agency and that there is a potential conflict but they still wish to retain the attorney to represent them in the adoption.
QUESTION:
Can an attorney who represents an adoption agency represent adoptive parents who are adopting through the agency in an uncontested adoption?
SUMMARY:
The lawyer may not represent both the adoptive parents and the adoption agency, since such representation would be materially limited by his responsibilities to third parties. Together with the adoptive parents and the adoption agency, it would appear that the state is an implicit party in the proceeding as well, and its interests are represented by the detailed statutory requirements for adoption and the judge's duty of fact-finding in the proceeding.
A lawyer's responsibility to represent and advise the adoption agency with regard to its duty to present factual statements concerning the fitness of the adoptive parents may be materially limited by his responsibility to act as advocate for the adoptive parents, and this cannot be waived by the adoption agency and the adoptive parents in view of the interest of the state in basing all adoptions on the child's best interest. In addition, rights of the child, represented by a guardian ad litem, could be adversely affected by the joint representation.
OPINION:
The fact situation herein does not involve a prohibited transaction, as that term is defined in Rule 1.8, and under Rule 1.7(a), a lawyer may represent a client even though the representation of that client may be directly adverse to another client if the lawyer reasonably believes that the representation will not be adversely affected, and the client consents after consultation. Under Rules 2.1 and 2.2, a lawyer may also act as an advisor or as an intermediary between clients under certain circumstances.
Rule 1.7(b) prohibits a lawyer from representing a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless the lawyer reasonably believes the representation will not be adversely affected and the client consents after consultation.
When representation of multiple clients in a single matter is undertaken, the consultation under Rule 1.7 must include an explanation of the implications of the common representation and the advantages and risks involved. Although there are undoubted cost and time advantages to a single attorney representing the adoption agency and adoptive parents, the attorney's duties to the adoption agency, and its duty to the court would appear to be incompatible with representation of the adoptive parents.
Together with the adoptive parents and the adoption agency, it would appear that the state is an implicit party in the proceeding as well, and its interests are represented by detailed statutory requirements for adoption and the judge's duty of fact-finding. The family court must conduct a hearing to determine if the adoption is in the best interest of the child being adopted and make findings of facts based upon evidence presented by the parties, including an investigation of the adoptive parents. The lawyer would have to obtain a waiver of confidentiality from both the adoptive parents and from the agency that would make a thorough and impartial investigation very difficult, if not impossible.
The child is normally represented by a guardian ad-litem, but even given the right of the guardian to present its own evidence and cross-examine witnesses, the guardian must also rely in part upon the activities of the adoption agency, and this reliance would also be compromised by the joint representation.
It would appear that a lawyer's responsibility to represent the adoption agency in its duty to present factual statements concerning the fitness of the adoptive parents may be materially limited by his responsibility to act as advocate for the adoptive parents, and this cannot be waived by the adoption agency and the adoptive parents in view of the interest of the state in basing all adoptions on the child's best interest. The lawyer cannot act as advisor and intermediary for these two parties without compromising his duty to third parties.