I. Ethical considerations are important in all areas of the law. In the area of adoption law, they take on a heightened importance. Unjustifiably, the area of independent (non-agency) adoption is surrounded by the perception that the activity is somehow of borderline legality. The phrases “blackmarket” or “greymarket” are frequently but inaccurately used to describe independent adoption. In an effort to combat and eliminate this misperception, it is important that adoption lawyers take great care in order to avoid even the possible appearance of impropriety.
II. One area in which problems most frequently arise is that of conflict of interests. In any adoption proceeding there are a number of potentially conflicting interests. In an independent adoption proceeding, the interests of the birth parents, the adoptive parents and the child to be adopted are potentially conflicting. Recognition of this is contained in American Bar Association Informal Opinion No. 87-1523 (Feb. 14, 1987) which prohibits an attorney from representing both sides of an adoption proceeding. This prohibition has been codified in Maryland.
III. In agency adoptions, there is an additional potentially conflicting interest –that of the agency itself. The state of Maryland has become a forerunner by its recognition of this distinction. It is only natural for both adoptive parents and birth parents who approach an agency to place trust in the representatives of that agency since the agency is licensed by the state and since the matter involved is one which requires a degree of trust. If the agency in question has an attorney either in-house or employed as outside counsel, it would be logical but extremely dangerous for either the birth parents or the adoptive parents to assume that the attorney for the agency can give legal advice to them. Far too often, both birth parents and adoptive parents engage in the important legal transaction called an adoption without the benefit of any legal counsel whatsoever independent from the attorney representing the agency.
IV. Although it is recognized that an attorney cannot represent more than one side in an independent adoption, there is nothing in Maryland law which requires separate counsel for a birth parent unless the birth parent is under 18 years of age (in which case, court-appointed counsel is required). All that is required is that the birth parent be advised of the option of separate counsel at the expense of the adoptive parents. This leads some practitioners to contend that although there is only one attorney involved, he or she represents the adoptive parents and the birth parents simply have no attorney. The above contention is extremely dangerous. Either the birth parents are being advised by the adoptive parents’ attorney (which is a conflict) or the birth parents have no one to explain to them even the most rudimentary aspects of the legal transaction. The better practice is to insist that the birth parents be represented by their own separate attorney in each case. If the attorney representing the adoptive parents is managing his or her case properly, there should never be a case in which birth parents are allowed to say they wish to proceed without counsel. The adoptive parents should be advised to stand their ground and not compromise on this important point.
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