Who is the client in private adoptions? The answer could stop ethically suspect private adoptions in Arkansas.
In Arkansas, there has been much debate about private adoptions facilitated solely by one attorney. In most situations, a biological family goes into a lawyer's office and asks the lawyer to place their unborn child up for adoption. Usually, the biological parents sign documents in the lawyer's office, and the lawyer starts looking for a set of adoptive parents. When the lawyer finds a set of adoptive parents, the adoptive parents pay the attorney a fee to process the adoption and give the lawyer other money for costs such as birth mother expenses, court costs, and so forth. This is riddled with problems rooted in legal ethics - the law that governs an attorney's behavior.
The first problem is how to define the relationship between the attorney and the biological parents. Is it an attorney-client relationship or is it an attorney dealing with an unrepresented person? The answer really depends a great deal on the sequence of events and procedure. Arkansas law makes it illegal for any person to place, assist in placing, or planning to place a person up for adoption without a license from the Arkansas Child Welfare Agency Review Board. The only two exemptions from this requirement are doctors and lawyers.
So when a biological family comes to an attorney and asks him or her to place their child up for adoption, the attorney can only do so because he or she is a lawyer. By default, when an attorney places, assists in placing, or plans to place a child up for adoption, the service is a legal service. That legal service is provided to a biological family, and an attorney-client relationship has formed. The attorney gives legal advice to the biological family about what payments they can take from adoptive parents, what they should not do to avoid a charge of adoption fraud, and may even give them money later accounted for as "pre-placement support." The attorney actively seeks adoptive parents for his or her client. When adoptive parents are found, the attorney negotiates an attorney's fee for themself and "expected biological family support" costs. The adoptive parents sign an engagement agreement - a document formally beginning the attorney-client relationship. After the child is born, the attorney files a petition for adoption as the attorney for the adoptive family and seeks to complete the adoption.
Arrangements like these are most common in my experience and they are riddled with conflicts of interest. Rule 1.7 of the Arkansas Rules of Professional Conduct prohibits attorneys from representing a client if it involves a conflict of interests. There are several ways a conflict can develop. For example, a conflict exists if the representation of one client will directly contradict the legal interests of another client. Attorneys who practice in private adoptions in arrangements like these will unequivocally say that the only client they have are the adoptive parents. Put simply, they are wrong if only because they formed an attorney-client relationship by giving legal advice, acting on the biological family's behalf to find an adoptive family, and in many cases acting in their best interests over the interests of the adoptive family (which I'll discuss in more detail below).
Some might say that even still, the biological family's legal interests and the adoptive family's legal interests are aligned - both want the adoptive family to adopt the child of the biological family. From this 30,000 foot view, it would appear that their legal interests align. But let's look closer. The biological family would like to have as much paid as possible in "birth family expenses." The adoptive family would like to pay as little as possible. The biological family has the absolute right to change their minds at any point up to five (or sometimes ten) days after the birth of the child. The adoptive family has no desire for the biological family to change their minds. If the biological family changes their minds, they will likely be in a place where they could not possibly pay back the money the adoptive family paid. The adoptive family will want every dime back, and probably the attorney fees they will undoubtedly be charged for another adoption. The biological parents may want some contact after the adoption, while the adoptive parents may want no contact at all. (Note - all adoptions in Arkansas are closed legally; only if the adoptive parents allow contact may biological parents engage with the adopted child.) So when you look at the individual components of the relationship, legal interests certainly start to diverge.
But let's say for the sake of argument that the representation of the biological parents does not contradict the representation of the adoptive family. A conflict also exists if "there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client." In the situation in which the biological family desires to change their mind and parent the child, how can the lawyer aid the biological parent in doing so without breaching his or her responsibilities to the adoptive parents? Or how could the lawyer advocate for the adoptive family in urging the biological family not to revoke consent considering the legal services the attorney has already offered to the biological family? When the biological family wants more money, how can the lawyer look out for the adoptive family's best interests in limiting their costs? If the biological family threatens to revoke if they don't get more money, how can the lawyer advise, represent, and advocate for both sides? As has been the case in countless adoptions in Arkansas, the risk of limitations on the lawyer's ability to represent both sides is high.
The law provides a way for an attorney to represent both sides even in these situations if four conditions are met. First, the lawyer has to reasonably believe that he or she can provide competent and diligent representation to both sides. I doubt any such belief could be reasonable at this stage in the history of adoptions in Arkansas, but for the sake of argument let's assume this is possible. Second, the representation cannot be prohibited by law. Right now, representing both adoptive and biological parents is not prohibited. Third, the representation cannot involve the assertion of a claim by one client against the other. We'll come back to this one because it is the condition that can never be met in these arrangements. Finally, each client must be informed about the conflict in writing, the possible ramifications, and consent in writing to the conflict. Most of the time attorneys have biological parents sign such a waiver (albeit less than informed), but do not have adoptive families sign informed written consent.
Back to that third condition - the representation cannot involve the assertion of a claim by one client against the other. An adoption is by definition the claim of one party to the custodial and parental rights of a child that lawfully and naturally belong to another party. It is a law suit - litigation. There is evidence presented to a court through testimony and documents such as a home study, expense report, criminal background check, child maltreatment background checks, putative father registry checks, and so forth. In every case, adoptive parents technically sue biological parents for an adjudication from a judge that the adoptive parents should have parental rights over a child that are thereby terminated as to that child and his or her natural parents. Since this third condition cannot be met, the conflict cannot be waived by the adoptive and biological parents. If the means by which the relationships are formed are such that the relationship is that of attorney and client and the biological and adoptive families have divergent legal interests or there is a significant risk that the lawyer cannot adequately represent both sides (as has been clearly shown above), then the lawyer cannot represent both sides. Each must have their own attorney or represent themselves.
An attorney in this situation will try to define the relationship between themself and the biological family as one of an attorney with an unrepresented person. In this case, the lawyer is not placing the child up for adoption; the biological family is doing that on their own. In this type of relationship, the lawyer cannot give the biological family legal advice except to seek an attorney of their own. The lawyer must act in the best interests of the adoptive family by refusing to make biological family support payments consistent with the law and limiting client expenses. If a dispute arises, the lawyer has no loyalty or relationship with the biological family in which a conflict could exist.
Some would argue that this is exactly what some attorneys are doing. Perhaps some are. However, some are paying biological parents "pre-placement support" - meaning the lawyer has not already contracted with an adoptive family to represent. By definition, a lawyer who does this has provided financial assistance related to litigation (an adoption), which Rule 1.8 only allows in certain circumstances within the attorney-client relationship. If this is done in the context of an attorney and an unrepresented person, it runs the grave risk of confusing the unrepresented party as to the attorney's role in the matter in violation of Rule 4.3. Such pre-placement support payments should never be made in an attorney-unrepresented person relationship and should be approached with caution in the attorney-client relationship. As such, this conduct looks more like that which occurs in an attorney-client relationship in which a conflict of interest would arise.
Additionally, many (if not all) of these attorneys are giving biological parents (the unrepresented party) legal advice regarding how the process of adoption works, what money they should expect, what they should not do in order to avoid an adoption fraud charge, and so forth. Giving legal advice to an unrepresented person (the biological family) is not permissible under Rule 4.3 and is more consistent with the attorney-client relationship in which a conflict of interests would arise than the attorney-unrepresented person relationship.
Furthermore, many (if not all) of these attorneys are doing everything they can and paying everything they can to the biological parents to keep them engaged. They are not acting in their clients' best financial interests and are often making payments that the law does not allow (which is a violation of Rule 1.2(d)). Additionally, many of these attorneys have lasting relationships with biological parents (especially mothers) who place multiple children up for adoption with that attorney over the course of years. When that attorney knows that a continued supply of babies will result in more income for the attorney over the years, the attorney does everything possible to keep the biological parent happy and bringing in more children for adoption, including acting contrary to the adoptive parents' best interests. Each of these actions are more like those an attorney would perform on behalf of a client than an unrepresented person, and each contribute to the appearance of a conflict of interests.
In short, if the attorney establishes a relationship with adoptive parents first, then it is possible for the adoption to be ethically completed with only one attorney as long as the attorney does not give legal advice to the biological parents and does not act contrary to the best interests of the adoptive parents. It's when attorneys become adoption brokers that conflicts arise - when the biological parent comes to the attorney to place the child up for adoption and the attorney then looks for adoptive parents. Conflicts arise when attorneys give legal advice to biological parents, act in their best interests, and then seek to represent adoptive parents in the same case. Because the former happens so frequently as to be standard practice, legislative reform is necessary to ensure that both biological and adoptive parents have an attorney looking out for their best interests.
I follow Christ. I have a beautiful wife Megan and three wonderful children, Harrisen, Rebekah, and Carter. I am a candidate for a Ph.D. in ethics from Midwestern Baptist Theological Seminary, have an M.Div. from Liberty Baptist Theological Seminary and a JD from the University of Arkansas, am licensed to practice law in several state and federal courts, and live in Rogers, Arkansas. I write a blog and produce a podcast. And I do it all that others may know Christ.