In a private adoption, can a lawyer advertise for birth mothers, broker the match between birth and adoptive parents, and represent only the adoptive parents?
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This page answers the general question as of 1988. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
Opinion E-88-4 addressed an attorney who handled adoptions and, at prospective adoptive clients' request, collected their resumes and solicited prospective birth mothers through phone-directory advertising and brochures to gynecologists' offices and clinics. When a birth mother responded, the attorney told her he or she could not represent her, gave basic adoption-law information, had her select a prospective adoptive couple from the resumes on file, and introduced them. The opinion addressed whether the attorney could ethically solicit or advertise for birth mothers the attorney would not represent, act as intermediary between biological and adoptive parents while ultimately representing only the adoptive parents, and provide legal counsel to an unrepresented birth mother if all parties consented.
On the first question, the committee concluded that whether such solicitation or advertising is ethical depends on whether the conduct is legal, citing Wis. Stat. section 946.716(b) (1985-86) on conduct that may constitute a felony, SCR 20:8.4(b) on a lawyer's criminal acts, and SCR 20:1.2(d) on assisting a client in conduct the lawyer knows is criminal. If the lawyer concludes the conduct is legal, the committee said, the lawyer must still comply with other standards, including SCR 20:4.3 (dealings with unrepresented persons), SCR 20:7.1(a) (misleading communications), SCR 20:7.3 (solicitation), and SCR 20:8.4(c) (dishonesty, fraud, deceit, or misrepresentation). On the second question, the committee adopted in full ABA Committee on Ethics and Professional Responsibility Informal Opinion 87-1523 (Jan. 14, 1987), which holds that a lawyer may not ethically represent or act as an intermediary for both the adoptive and biological parents in a private adoption because of inherent, irreconcilable conflicts. It added that the second question's implication that representing one party after intermediation is proper is in error, because SCR 20:2.2(c) requires complete withdrawal from a matter if the conditions of SCR 20:2.2(a) are not satisfied. On the third question, the committee answered no, consistent with its adoption of ABA Informal Opinion 87-1523.
Currency note
This opinion was issued in 1988, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update). The intermediary rule SCR 20:2.2 was deleted from the Model Rules in 2002, and the solicitation, advertising, and unrepresented-person rules have since been revised. 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 birth parents and the adoptive parents in a private adoption?
A: No. The committee adopted ABA Informal Opinion 87-1523 in full, concluding a lawyer may not represent or act as intermediary for both sides because of inherent, irreconcilable conflicts.
Q: Can the lawyer advertise to find birth mothers the lawyer will not represent?
A: Per the opinion, only if that conduct is legal under Wisconsin law; if it is, the lawyer must still comply with the advertising, solicitation, unrepresented-person, and honesty rules (SCR 20:7.1, 20:7.3, 20:4.3, 20:8.4).
Q: After brokering the match, can the lawyer then represent just the adoptive parents?
A: No. The committee said SCR 20:2.2(c) requires complete withdrawal if the intermediation conditions are not satisfied, so continuing to represent one side is improper.
Background and rules framework
The opinion interpreted the intermediary rule SCR 20:2.2 / Model Rule 2.2 (since deleted from the Model Rules in 2002) together with SCR 20:4.3 / Model Rule 4.3 (unrepresented persons), SCR 20:7.1 and 20:7.3 / Model Rules 7.1 and 7.3 (communications and solicitation), and SCR 20:8.4 and 20:1.2(d) / Model Rules 8.4 and 1.2 (misconduct and limits on assisting crime), as applied to private adoption practice.
Citations and references
Rules of Professional Conduct:
- Wis. SCR 20:2.2 / Model Rule 2.2 (intermediary; deleted from the Model Rules in 2002)
- Wis. SCR 20:4.3 / Model Rule 4.3 (unrepresented persons); SCR 20:7.1, 20:7.3 / Model Rules 7.1, 7.3
- Wis. SCR 20:8.4, 20:1.2(d) / Model Rules 8.4, 1.2
Statutes:
- Wis. Stat. section 946.716(b) (1985-86) (unlawful adoption-related conduct)
Other opinions cited:
- ABA Informal Op. 87-1523 (Jan. 14, 1987), adopted in full
See also
- WI Ethics Op. E-89-10: Representing Co-Investors
- WI Ethics Op. E-95-5: Forming a Client Relationship
- WI Ethics Op. E-09-02: Prosecutors and Pro Se Persons
Source
- Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
- Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-88-4.pdf
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