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