NEW YORK STATE BAR ASSOCIATIONProfessional
Ethics Committee Opinion
Opinion #68 - 01/08/1968
Topic: Private Placement Adoptions, Conflict of Interest
Digest: Lawyer may handle private placement adoptions where law is in
apparent conflict. Improper for lawyer to represent both natural and
Canon: Former Canon 6
The following questions relating to "private placement" adoptions
have been referred to this Committee:
(1) May an attorney ethically
handle a "private placement" adoption in view of court decisions denying
such adoptions on the ground that the infant has not been "placed out"
in compliance with Sections 371 and 374 of the Social Welfare Law (see
"Re Anonymous", 46 Misc. 2nd; 261 N.Y. Supp. 2nd 439)?
(2) If so, is it ethical for the
same attorney to represent or advise both the natural parent and the
The provisions of Sections 371 and 374 of the Social Welfare Law
seemingly prohibit anyone other than certain specified close relatives
or an "authorized agency" from placing out a child for adoption. (See
also Matter of Miller, 22 App Div 2nd 530, 256 N.Y. Supp. 2nd 962.)
While "this Committee does not pass upon questions of law, we note
that the provisions of Sections 115-116 of the Domestic Relations Law
seemingly authorized "private placement" adoptions. It is our
understanding that some judges presently entertain petitions for private
placement adoptions while others do not.
Assuming that a conflict exists between the provisions of the Social
Welfare Law which seemingly prohibit "private placement" adoptions and
the provisions of Sections 115-116 of the Domestic Relations Law
authorizing same, we do not deem it unethical for an attorney to handle
a "private placement" adoption. Attorneys must frequently act
where court decisions or statutory provisions conflict. We therefore
answer Question (1) in the affirmative.
While it is not necessarily unethical to represent conflicting
interests where there is a full disclosure and express consent (Canon
6), it is our opinion that the potential conflict between the natural
parent and the adoptive parents is of a kind that in most cases makes it
professionally improper for the same lawyer to represent or advise both
interests, even after full disclosure and express consent.
Exceptions can only be permitted where the adoptive parent is
either married or closely related to one of the natural parents in which
event there would be little or no chance of potential conflict.
We, therefore, answer Question (2) in the negative with the noted
For an analysis of the ethical problems relating to various adoption
practices, see the opinion of the Ethics Committee of the Bar
Association of Erie County published in the Buffalo Daily Law Journal
January 26, 1966.