Can a lawyer who regularly represents an adoption agency also represent the birthmother in the same consent or surrender-and-release adoption proceeding?

Plain-English summary

A nonprofit, state-licensed adoption agency that counsels birthmothers and assists in adoptions asked whether lawyers who regularly represent the agency could, at the agency's request, also represent the birthmother in either a "consent" proceeding (the birthmother consents in court to adoption by identified parents) or a "surrender and release" proceeding (the birthmother relinquishes parental rights and places the child with the agency for later adoption). In both, the birthmother participates voluntarily and has a statutory three-day right to revoke consent, and the court must explain that right and the availability of counseling and appointed counsel.

The Commission analyzed Rule 3.4(c). It concluded the situation was not per se prohibited under Rule 3.4(c)(1), because the agency and birthmother are not opposing parties: in a consent proceeding the agency is not even a party, and in a surrender-and-release proceeding the two come before the court with no dispute, seek the same relief, and either can unilaterally decline to participate. Turning to Rule 3.4(c)(2), the Commission found that a conflict of interest does exist under Rule 3.4(b), because the birthmother might begin to change her mind at a point when the agency has acquired institutional momentum toward completing the adoption (particularly where the agency is reimbursed by adopting parents on completion); given the gravity of an irreversible relinquishment of parental rights, the risk of conflicting duties was "substantial."

Because the conflict is consentable, the Commission concluded that, generally on these facts, simultaneous representation does not violate the Bar Rules whenever the lawyer is reasonably satisfied the birthmother can make an adequately informed decision and wishes to proceed, for three reasons: the fundamental decision whether to surrender the child is made with the agency's counseling before the lawyer arrives, so the lawyer's role is largely ministerial; the legal task (completing the adoption properly) is a common goal involving no bargaining; and the birthmother's participation is entirely voluntary, with the court obligated to ensure she knows it. It noted the Vermont Bar Association reached a similar conclusion (Opinion No. 90-6). The Commission required informed consent from both clients, with disclosure of the birthmother's continuing right (until three days post-decree) to terminate, the extent of any agency funds tied to completion, the lawyer's commitment to assist the birthmother in revoking despite any contrary agency interest, and the limits of the joint representation (limited to the adoption, no confidences between the parties, and no representation of either against the other in related matters).

Currency note

This opinion was issued in 1997, before Maine's replacement of the former Maine Bar Rules with the Maine Rules of Professional Conduct (effective August 1, 2009). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can one lawyer represent both the adoption agency and the birthmother?

A: The opinion concluded yes, with informed consent. The two are not opposing parties, so the dual representation is not per se barred; although a conflict exists, it is consentable under Rule 3.4(c)(2).

Q: Why did the Commission find a conflict at all?

A: Because the birthmother might reconsider. The opinion found a substantial risk under Rule 3.4(b) that the agency's institutional momentum toward completing the adoption (and its reimbursement on completion) could conflict with the birthmother's interest, given the gravity of relinquishing parental rights.

Q: What must the lawyer disclose to the birthmother?

A: The opinion required disclosure of her continuing right to terminate (until three days after the decree), any agency funds tied to completion, the lawyer's commitment to help her revoke despite agency interests, and the limits of the joint representation.

Background and rules framework

The opinion interprets Maine Bar Rule 3.4(c) (simultaneous representation), distinguishing per se prohibited representation of opposing parties (Rule 3.4(c)(1)) from consentable conflicts (Rule 3.4(c)(2)), and applies the conflict definition in Rule 3.4(b). These correspond to ABA Model Rule 1.7 (conflict of interest; current clients). The Commission cited Vermont Bar Association Opinion No. 90-6 as persuasive.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 (conflict of interest; current clients)
• Maine Bar Rule 3.4(b), 3.4(c)(1), 3.4(c)(2)

Other opinions cited:

• Vermont Bar Association Opinion No. 90-6.

See also

• ABA Formal Op. 08-450: Confidentiality When Representing Multiple Clients in the Same Matter
• NY State Bar Op. 674: Multiple Representation of a Corporation and Its Constituents

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=89598

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

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.