Can a lawyer who represents a foster care agency in terminating parental rights then represent the prospective adoptive parents who want to adopt that child?
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This page answers the general question as of 1998. Ask about yours and see what the current New York Rules of Professional Conduct say for your facts, with citations.
Plain-English summary
The committee considered whether a lawyer who represents a foster care agency in extra-judicial surrender proceedings (Soc. Serv. Law 383-c(4)) or termination-of-parental-rights proceedings (Soc. Serv. Law 384-b) could represent the prospective adoptive parents seeking to adopt the child in those proceedings. It analyzed concurrent and successive representation separately, and barred both.
On concurrent representation, the committee, agreeing with In re Adoption of Vincent, found the agency's and the adoptive parents' interests differ: the agency's mandate is to act in the child's best interests, while the adoptive parents' interest is the private one of adopting the child. New information might lead a lawyer representing only the agency to change the agency's plan, advocate a different outcome, or present the court with problems about the adoptive parents, none of which a lawyer who also represented those parents could do without disloyalty. Because the dual representation would likely involve differing interests under DR 5-105(A) and it would not be obvious that the lawyer could adequately represent each client under DR 5-105(C), the representation was impermissible even with full disclosure and consent.
On successive representation, the committee relied on the policy underlying DR 9-101(B)(1) and Canon 9, which guard public confidence in public agencies and processes by preventing a lawyer from using a public role for private advantage. Although DR 9-101(B)(1) might not literally apply (the agency is private, or the privately retained lawyer is not a "public employee"), the committee found the agency functions as the equivalent of a public agency, and that, as in N.Y. State 534 (1981) (legal aid society) and N.Y. State 514 (1979) (guardian ad litem who then represented the conservator), the rule's concerns were strongly implicated. There was a risk the agency's lawyer would be influenced by the prospect of later employment by the adoptive parents to be overly aggressive in terminating the natural parents' rights, and that the public would perceive the later retention as acting for private advantage. The committee therefore barred the successive representation as well.
Currency note
This opinion was issued in 1998, under New York's former Code of Professional Responsibility, which New York replaced with the Rules of Professional Conduct in 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 foster care agency and the adoptive parents at the same time?
A: The opinion concluded no. The dual representation would likely involve differing interests under DR 5-105(A), and it would not be obvious the lawyer could adequately represent each client, so consent could not cure it.
Q: Can the lawyer finish representing the agency and then represent the adoptive parents?
A: The opinion concluded no. The policy underlying DR 9-101(B)(1) and Canon 9 barred the successive representation, because of the risk that the prospect of later employment would skew the agency's representation and the appearance the lawyer acted for private advantage.
Q: Why couldn't the parties just consent to the joint representation?
A: The opinion held the concurrent conflict was non-consentable: it would not be obvious the lawyer could adequately represent each client, and the matter implicated public confidence in the foster care and adoption processes.
Background and rules framework
The opinion interpreted New York's former Code of Professional Responsibility: DR 5-105(A) and (C) (concurrent conflicts and the non-consentable standard), DR 5-101(A) (personal-interest conflicts), DR 5-108(A) (former clients), and DR 9-101(B)(1) together with Canon 9 (using a public role for private advantage; appearance of impropriety). The Model Rule analogues are Rule 1.7 (concurrent conflicts), Rule 1.9 (duties to former clients), and Rule 1.11 (former and current government officers and employees). New York replaced the Code with the Rules of Professional Conduct in 2009; the DR numbers cited here are historical.
Citations and references
Rules of Professional Conduct:
- MR 1.7 (concurrent conflict of interest)
- MR 1.9 (duties to former clients)
- MR 1.11 (special conflicts for former and current government officers)
- NY DR 5-105(A), (C); DR 5-101(A); DR 5-108(A); DR 9-101(B)(1); DR 9-101(C); Canon 9
Statutes:
- N.Y. Soc. Serv. Law 383-c(4) (extra-judicial surrender) and 384-b (termination of parental rights)
- N.Y. Dom. Rel. Law 111, 112, 114 (adoption consent and approval)
Cases:
- In re Adoption of Vincent, 158 Misc. 2d 942, 602 N.Y.S.2d 303 (Fam. Ct. 1993), conflict between agency and adoptive parents
Other opinions cited:
- N.Y. State 534 (1981): Canon 9 policy applied to a legal aid society
- N.Y. State 514 (1979): guardian ad litem barred from then representing the conservator
- N.Y. State 506 (1979): purpose of DR 9-101(B)(1)
See also
- NY State Bar Op. 712: A lawyer who is a beneficiary of a trust holding client stock
- NY State Bar Op. 715: A contract lawyer working for multiple firms
Source
- Landing page: https://nysba.org/opinion-708/
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