Ethical Blind Spots in Adoption Lawyering

Abstract

Lawyers engaged in adoption work often call it “happy law,” and consider adoption – finding a child for yearning parents, finding parents for a needy child – an unmitigated good. That attitude can mask the fact that all adoption begins with loss. One family loses a child so that another family can gain one. A lawyer’s assurance that she is engaged in positive work can lead to ethical blind spots that ignore the complexities of adoption practice. And while the touchstone of adoption is the best interests of the child, the primacy in legal ethics of the interests of the client, who is rarely the child, skews that focus. This article discusses ethical issues relevant to adoption attorneys, centering on the Model Rules of Professional Conduct most applicable to adoption practice, as well as the lessons from behavioral ethics that inform the ethical blind spots common in the practice. Rules relating to competency and confidentiality, conflicts of interest and dual representation, and the lawyer’s role as counselor are particularly germane. 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. This article sketches the contours of ethical lawyering in adoption in order to shine light on the ethical blind spots adoption attorneys should avoid, and to suggest some solutions from behavioral ethics to eradicate blind spots.

Keywords: adoption, legal ethics