LEO: Communication with Adverse Party LE Op. 1227
Communication with Adverse Party - Contracts - Representing a
Client Within the Bounds of the Law: Propriety of Attorney
Assisting in a Direct Placement Adoption.
May 8, 1989
You have asked the Committee to consider the following situations
involving an attorney's assistance in a direct placement, nonstep-parent
adoption. The Committee will address each in the order in which it was
presented in the inquiry.
I. An attorney is employed by prospective adoptive parents who wish to
place an advertisement in a periodical which would read "stable, loving
couple with good moral values wishes to adopt a baby. Call X." The
publishing company requires that the advertising request be made by the
parents' attorney on the attorney's letterhead. Is there any ethical
reason for the attorney declining to request placement of the
advertisement where neither the name nor the telephone number of the
attorney will be used in the advertisement?
The Committee is of the view that the question you have raised regarding
the attorney assisting his client in locating or effecting the placement
of a child by way of advertisement by individuals not duly authorized for
child placing is a legal question, and as such is beyond the purview of
this Committee. The Committee opines that if the activity described is
determined to be legal, nothing in the Virginia Code of Professional
Responsibility would render it ethically improper. If, however, the
attorney determines that the contemplated advertisement by a private
citizen is illegal, then the attorney's participation in or assistance to
such activity would be violative of DR:7-102(A)(7) and (8), which state
that a lawyer shall not counsel or assist his client in conduct the lawyer
knows to be illegal or fraudulent, nor should an attorney knowingly engage
in other illegal conduct or conduct contrary to a disciplinary rule.
II. May an attorney ethically draft a contract providing for the payment
of biological mother's medical and legal fees in consideration for her
consent to the adoption by the attorney's client/prospective adoptive
The Committee is of the opinion that the second question you have raised
similarly turns on whether such a contract would be an agreement for an
activity which is either illegal or against public policy. If not, or if a
good faith argument can be made for an extension, modification, or
reversal of any existing law, there is no inherent ethical impropriety in
drafting such a contract.
III. If the aforementioned contract in question no. II is executed, may
the attorney handle the payment of the pregnant woman's medical and legal
bills if she is not represented by independent counsel?
In the view of the Committee, if the aforementioned contract executed by
the unrepresented biological mother is legal, valid and binding in
Virginia, the attorney may handle the payment of the pregnant woman's
medical and legal bills as the agent of the prospective adoptive parents.
If and when an action matures and the biological mother's interests become
adverse to the adoptive parents, the lawyer also should be mindful of the
requirements of DR:7-103. (See also LE Op. 741)
Committee Opinion May 8, 1989