If a firm prepared an adoption agreement for both the adoptive couple and the birth mother, can it later sue the birth mother for the couple?

Plain-English summary

Law Firm XYZ represented an adoptive couple who wished to adopt the unborn daughter of a birth mother. The firm prepared an "Agreement" to be executed by all parties, which stated that the birth mother knew the lawyer was counsel for the adoptive couple and that she had the right to get her own lawyer. The birth mother later breached the agreement and refused the adoption. The question was whether the firm could sue the birth mother on the couple's behalf to recover money the couple had paid in contemplation of the adoption.

The committee said the relevant rule is Rule 1.9(a), under which a lawyer who formerly represented a client in a matter may not later represent another person in the same or a substantially related matter where the new client's interests are materially adverse to the former client, absent the former client's consent after consultation. If the firm represented both the couple and the birth mother, it could not afterward represent the couple in an action against the birth mother on the contract. To determine whether a representation of the birth mother existed, the committee said the lawyer should consider the extent to which the firm performed services for both parties, consulted with both parties, and whether both parties appeared to rely on the firm's representations and advice. The committee added that the presence or absence of fraud makes no difference to the conclusion.

Currency note

This opinion was issued in 1990, before the South Carolina Bar's adoption of the 2005 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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 a firm that drafted an agreement for both sides later sue one side for the other?

A: The committee said no, if it represented both; Rule 1.9(a) bars later representing one former client against the other in the same or a substantially related matter without consent.

Q: How does a lawyer tell whether it represented the birth mother too?

A: The committee said to consider the extent to which the firm performed services for both parties, consulted with both, and whether both appeared to rely on the firm's representations and advice.

Q: Does it matter whether the birth mother committed fraud?

A: The committee said no; the presence or absence of fraud makes no difference to whether the firm may bring the suit.

Background and rules framework

The opinion applies Rule 1.9(a) (duties to former clients), corresponding to Model Rule 1.9. The committee framed the threshold question as whether an attorney-client relationship with the birth mother existed, to be assessed by the firm's services, consultations, and the parties' reliance.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.9(a) / Model Rule 1.9: a lawyer shall not represent another in the same or a substantially related matter materially adverse to a former client without consent.

See also

• SC Bar Ethics Op. 90-34: Suing a Former Client
• SC Bar Ethics Op. 00-05: Past Closings, Later Divorce
• SC Bar Ethics Op. 90-42: Former Client's Confidences

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-90-29/

Original opinion text

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

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 90-29

Law Firm XYZ represents Mr. and Mrs. Jones. Mr. and Mrs. Jones wish to adopt the unborn daughter of Sally Lou. (Note: From the facts given, we do not know if Law Firm XYZ was involved in establishing the relationship between Mr. and Mrs. Jones and Sally Lou.) Law Firm XYZ has prepared an "Agreement" to be executed by all parties. At some time later (exact time not given) Sally Lou breaches the "Agreement" and refuses to allow the baby to be adopted by Mr. and Mrs. Jones.

It should be noted that in the "Agreement" it states: "However, I know that XXXXXXX is lawyer for the adoptive couple and I have the right to get my own lawyer if I want to." (Note: From the facts given, we do not know if Sally Lou did obtain her own lawyer, if another lawyer was involved in the matter other than Law Firm XYZ, or what Law Firm XYZ may have had to do with obtaining a lawyer for Sally Lou.)

Question:
Can a civil suit be brought by XYZ Law Firm against Sally Lou on behalf of Mr. and Mrs. Jones to collect monies paid by the Joneses to Sally Lou in contemplation of adoption of the baby?

Summary:
Law Firm XYZ may not represent Mr. and Mrs. Jones in action to collect the money paid to Sally Lou. The presence or absence of fraud makes no difference.

Opinion:
The relevant Rule applicable to this situation is Rule 1.9(a) of the Rules of Professional Conduct.

"A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or substantially related matter in which that person's interest are materially adverse to the interests of the former client unless the former client consents after consultation." Under this rule, if XYZ Law Firm represented Mr. and Mrs. Jones and Sally Lou, the firm cannot subsequently represent the Joneses in an action against Sally on the contract. In determining whether a representation exists, the lawyer should consider the extent to which: (1) the firm performs services for both parties, (2) consults with both parties, and (3) both parties appear to rely upon representations and advice given by the firm.