Malinda L. Seymore*, Ethical Blind Spots in Adoption Lawyering, 54 U. Rich. L. Rev. 527 (2020).

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When Sherrie Smith approached her lawyer, Robert Stubblefield, desiring to place her then-unborn child for adoption, he agreed to help her find adoptive parents for the child. He found them in his own home—he and his wife, without telling the mother until after she signed an irrevocable consent, adopted the child. If Stubblefield had tried to buy her house under those circumstances, it would have been a clear violation of the Model Rules of Professional Conduct (the “Model Rules”)—when it comes to business transactions with clients, the Model Rules recognize that a lawyer’s legal training, together with the trusting relationship between the lawyer and potentially less powerful client, “create the possibility of overreaching.” A lawyer cannot enter into business transactions with a client unless the terms are fair and reasonable to the client and disclosed in a writing transmitting those terms in a manner that can be understood by the client.[3] The client must also be advised in writing that they should seek the advice of independent legal counsel and be given a reasonable opportunity to do so. Finally, the client must give informed consent in a writing signed by the client that outlines the transaction terms and the role of the lawyer in the transaction. Stubblefield took none of these steps necessary to protect a client from an overreaching attorney in a business transaction when adopting his client’s child without her knowledge. If he had been buying his client’s business or house rather than adopting her child, his course of conduct would have clearly run afoul of the Model Rules.

But perhaps it is wrong to compare an adoption process to a business transaction, though adoption is clearly a business in addition to a child welfare institution. Language of “gift” abounds in adoption; perhaps the transaction between Sherrie and Stubblefield was a gift. But lawyers are also prohibited from soliciting substantial gifts from clients, out of the same concerns for undue influence that arise in business transactions. Even without the special rules regarding gifts and business transactions, Stubblefield was operating in his own self-interest—his desire to adopt the child—rather than out of undivided loyalty to his client. That, too, is a violation of the general conflict of interest rules regulating attorney behavior.

How did Stubblefield miss these red flags signaling unethical behavior? Perhaps it is simply that the Model Rules fail to give sufficient guidance in specific areas. Perhaps the answer lies in the field of behavioral ethics, in “all too human modes of thinking.” Behavioral legal ethics posits that psychological factors blind lawyers to their own unethical conduct. Psychological factors may also blind lawyers to the ethical missteps of others as well, which may explain why the Stubblefield court had a great deal of difficulty imposing discipline on Stubblefield for adopting his client’s child and settled for merely proscribing such conduct in the future.

For adoption lawyers, ethical blind spots may arise because of their views of the righteousness of adoption work:

It is also too easy for attorneys to become caught up in the view that family formation work always exemplifies goodness and morality, possibly causing them to disregard the interests of the other parent as the lawyer marches toward the goal of creating a new and legally recognized parent/child relationship.

Even without a personal desire to adopt the client’s child, the attorney’s view of the inherent rightness of adoption may lead to unconscious bias. Lawyers often view adoption as “happy law,” ignoring the fact that adoption always starts with loss.

This Article discusses ethical issues relevant to adoption attorneys, as well as the lessons from behavioral ethics that inform the ethical blind spots common in the practice. The Model Rules for attorneys address a number of areas relevant to the complexities of adoption practice. Rules relating to competency and confidentiality, conflicts of interest and dual representation, and the lawyer’s roles as counselor as well as advocate are particularly germane. Although much has been written about the dual representation issue in adoption, other issues of professional responsibility in adoption cases have not been as carefully explored. This Article seeks to remedy that. Since legal ethics can be both descriptive and normative, this Article addresses both what the ethical requirements of professional responsibility are and what they should be in adoption practice. In doing so, this Article considers whether a more child-centered approach to adoption practice comports with the Model Rules. In addition to rules of professional conduct, there are other legal constraints on a lawyer’s conduct:

[T]he rules adopted in every state to regulate the conduct of lawyers are just one set of guidelines for the practice of law. Discovery rules, malpractice claims, appellate review of lower court decisions, the inherent power of the courts to punish for contempt, and even the criminal law provide constraints on how lawyers should operate when representing clients.

In assessing ethical lawyering in adoption, this Article examines all of these legal sources of ethical standards, as well as disciplinary rulings. This Article seeks to sketch the contours of ethical lawyering in adoption in order to shine light on the ethical blind spots adoption attorneys should avoid. Finally, this Article examines solutions to ethical blind spots from behavioral ethics.

* Professor of Law, Texas A&M University School of Law. I gratefully acknowledge the financial and institutional support of Texas A&M, without which this Article would not have been possible. This Article expands on an essay to be published by Adoption Quarterly’s special issue on adoption ethics. As is the tradition among those who write about adoption, I wish to note my place in the adoption triad: I am an adoptive parent of two children via international adoption.