In re the Adoption of Gustavo G.

OPINION OF THE COURT Sullivan, J. In this proceeding to adopt the child Gustavo, whose biological mother’s parental rights have been terminated, thereby-freeing him for adoption, petitioner, the maternal grandmother, appeals from Family Court’s dismissal of the petition based upon the court’s disqualification of her counsel. Since the court improperly applied an unjustified per se disqualification rule, and the record clearly shows that the proposed adoption is in the child’s best interests, we reverse and remand the matter to Family Court with the direction to complete the adoption process. Gustavo, born on August 22, 1999, was originally placed with the Administration for Children’s Services on March 3, 2000 and subsequently transferred to the care of Angel Guardian Children and Family Services (Angel Guardian). He has, since March 13, 2000, resided continuously in the kinship foster home of petitioner. By order entered on or about June 11, 2002, the biological mother and alleged father’s parental rights were terminated and the child freed for adoption. Warren & Warren, EC. represented Angel Guardian in that proceeding. Thereafter, on November 6, 2002, petitioner, represented by Warren & Warren, filed a petition seeking to adopt Gustavo. As the record shows, petitioner complied with all the provisions of the Domestic Relations Law and submitted the requisite documentation, including a home study prepared by the caseworker. Fetitioner, a detective with the New York City Police Department, is described as a friendly, outgoing and articulate woman, patient and attentive to the child, who is, according to the study, a lovable, playful and active toddler. The child is enrolled in a daycare center across the street from the precinct where petitioner works. Angel Guardian “highly recommends [petitioner] as the adoptive parent for Gustavo ... so that he will receive the ongoing opportunity to thrive in his grandmoth — 104 — er’s love and devotion, and know safety and permanency throughout his lifetime and within his family of origin.” On January 27, 2003, Family Court, sua sponte, issued an order to show cause why the petition for adoption should not be dismissed because of Warren & Warren’s conflict of interest. The latter responded by arguing that the application of a per se disqualification rule conflicts with New York public policy and by demonstrating that petitioner, before retaining Warren & Warren, was fully advised about dual representation and informed as to the possibility of a situation arising that would result in a disqualifying conflict of interest. The firm advised the court that in over 25 years of practice, and with considerable experience in the area of foster care and adoption law, its ability to recognize potential conflicts of interest and to protect the interests of its clients had never been questioned. Without any reference to the child’s best interests or any consideration of petitioner’s ability to provide him with a stable and permanent home, Family Court, unable to find an actual conflict of interest and relying mainly on a New York State Bar Association ethics opinion (NY St Bar Assn Comm on Prof Ethics Op 708 [1998]), dismissed the petition. Code of Professional Responsibility DR 5-105 (22 NYCRR 1200.24) provides: “(a) A lawyer shall decline proffered employment if the exercise of independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, or if it would be likely to involve the lawyer in representing differing interests .... “(b) A lawyer shall not continue multiple employment if the exercise of independent professional judgment in behalf of a client will be or is likely to be adversely affected by the lawyer’s representation of another client, or if it would be likely to involve the lawyer in representing differing interests .... “(c) . . . [A] lawyer may represent multiple clients if a disinterested lawyer would believe that the lawyer can competently represent the interest of each and if each consents to the representation after full disclosure of the implications of the simultaneous representation and the advantages and risks involved.” — 105 — As the facts show, petitioner’s attorneys strictly complied with this provision. Although this is not a case of multiple employment, at the time petitioner retained Warren & Warren, the firm could and did exercise “independent professional judgment” on her behalf since her interests and those of Angel Guardian were aligned: both support petitioner’s adoption of the child. At that juncture, insofar as the termination proceeding was concerned, Angel Guardian was a former client and, as even Family Court conceded, there was no actual conflict between the position of petitioner and that of Angel Guardian. Moreover, as the record shows, at the time of retention, Warren & Warren clearly advised petitioner that it had represented Angel Guardian and of the possibility that a conflict of interest could arise at some point during the course of the adoption proceedings. In such an event, she was advised, Warren & Warren would withdraw as her attorney. After being so advised, petitioner decided to retain Warren & Warren. Absent some indication that the decision was not knowingly or intelligently made and given the lack of an actual conflict of interest, petitioner’s choice of counsel must be respected. Since Warren & Warren complied with the applicable provisions of the Code of Professional Responsibility, there was no reason for the disqualification. Family Court, without reference to any particular fact or analysis of the overall case, ruled that disqualification was mandated whenever an adoptive parent is represented by the same attorney who represented the foster care agency charged with the care and custody of the child. Such per se disqualification conflicts with legal precedent. As the Court of Appeals has noted, “A per se disqualification rule . . . conflicts with public policies favoring client choice and restricts an attorney’s ability to practice” (Solow v W.R. Grace & Co., 83 NY2d 303, 310 [1994]). Thus, in the case of successive representation, as here, “[a] party seeking to disqualify an attorney or a law firm, must establish (1) the existence of a prior attorney-client relationship and (2) that the former and current representations are both adverse and substantially related” (id. at 308). Moreover, unlike the present case, in which successive rather than simultaneous representation is involved, “[a]n attorney may engage in simultaneous representation of different clients where such representation ‘will not adversely affect. . . (his or her) independent professional judgment in behalf of (his or her) client (or clients)’ .... Even where clients have differing — 106 — interests, an attorney may represent such clients where ‘a disinterested lawyer would believe that the lawyer can competently represent the interest of each and . . . each consents to the representation after full disclosure of the implications of [the] simultaneous representation and the advantages and risks involved’ ” (Rosen v Rosen, NYLJ, Jan. 31, 2003, at 25, cols 2, 4 [Sup Ct, Suffolk County], quoting 22 NYCRR 1200.24 [c]). In Matter of Harley v Ziems (98 AD2d 720 [1983]), in reversing the trial court’s grant of a motion to disqualify counsel from representing a party where there was a pending parallel action raising the same issue against another party similarly represented, the Appellate Division found that “the interests of the represented parties are essentially similar and so any potential conflict of interest in their representation is at best minimal” (id. at 721), and held that “the interests of a client in retaining an attorney of his own choice and preference should prevail as against the general rule that the appearance of impropriety should be avoided” (id.). Here, while there is a prior attorney-client relationship between Warren & Warren and Angel Guardian and an ongoing attorney-client relationship between Warren & Warren and petitioner, and the former and current representations are substantially related, they are in no way adverse. Insofar as Angel Guardian clearly supports the adoption by executing and filing with the court its written consent and strongly recommending in the home study that the adoption process proceed to completion, the parties are united in interest and are not in conflict. Nothing in this record suggests that Warren & Warren’s successive representation of two of the parties is in any way “fraught with the potential for irreconcilable conflict” (see Greene v Greene, 47 NY2d 447, 451 [1979]). To the contrary, given their unity of interest, petitioner and Angel Guardian’s use of the same attorneys facilitates a coordinated approach to the disposition of this matter and furthers the public interest in securing a permanent home for the child in a most expeditious manner. In concluding that Warren & Warren’s “successive and dual representation presents an inherent conflict of interest relating to the very subject matter of the proceeding,” the dissent ignores the unity of interest between Angel Guardian and petitioner and the fact that the mischief attendant upon successive representation arises from the adversarial relationship between the represented parties. In justifying its decision, Family Court held, “In summary, the integrity of the system is at the heart of the matter, which — 107 — is more important than expediency. To preserve that integrity, even the appearance of conflict must be avoided.” Clearly, Family Court adopted a per se rule of disqualification. In its view, the existence of any potential for conflict is sufficient to warrant disqualification. In support of its ruling, Family Court relied, as noted, upon an opinion issued by the New York State Bar Association (supra), which, needless to say, is advisory in nature and neither law nor binding precedent, and cited favorably Matter of Vincent (158 Misc 2d 942 [1993]), a Family Court case involving an actual conflict of interest between the petitioning adoptive parent and the placing agency. In explaining its conclusion proscribing dual representation in foster care cases, the Committee on Professional Ethics wrote that in Matter of Vincent (supra), “[t]he court identified a number of ways in which a conflict between the interests of the foster care agency and the adoptive parents might manifest itself. In some cases, it may initially appear to be in the child’s best interests for the natural parents’ rights to be terminated and for the foster parents to adopt the child, but it may later appear to be otherwise. In light of new information or changed circumstances, a lawyer representing exclusively the agency might be expected to counsel the agency to change its plans, to advocate for the agency on behalf of a different outcome, or to present information to the court about problems relating to the adoptive parents that cast doubt on the appropriateness of their adopting the child. The lawyer who simultaneously represented the adoptive parents could not do any of these things, however, without acting disloyally to the individual clients. In other cases, a lawyer representing exclusively the adoptive parents might advocate for an increased level of services from the foster care agency or might call attention to the agency’s deficiencies, whereas the lawyer who represented both clients might be discouraged from doing so out of loyalty to the agency.” As already noted, the court in Vincent addressed an actual conflict of interest that arose in an adoption proceeding. As is the case here, the adoptive parent was represented by the same attorney who represented the placing foster care agency. After — 108 — receiving a home study submitted by the agency, the court ordered the Probation Department to conduct a second investigation of the petitioning adoptive parent, which investigation, as it developed, contradicted many of the facts contained in the agency’s home study. Upon learning of the “vast differences” between the two home studies and “[w]ithout any court action, the attorney promptly had his agency remove the prospective adoptive child and other children from the foster home of the petitioner, who was his client. Of course, upon learning this the court appointed an independent attorney for the petitioner. Clearly, the agency attorney could not act both for the agency that originally consented to the adoption and for the prospective adoptive parent” (158 Misc 2d at 944-945). Based upon this instance of an actual conflict, the court, in dicta, set forth a per se disqualification rule, impliedly setting a standard that measures the conduct of all adoption attorneys on the basis of a single set of circumstances. Unlike Vincent, there is no suggestion of any inappropriate conduct here and no indication of any information being withheld from the court, as Family Court conceded. It is also significant to note the amendment of Social Services Law § 374 (6), which in providing, in pertinent part, that “[n]o attorney or law firm shall serve as the attorney for, or provide any legal services to both the natural parents and adoptive parents” with respect to adoptions from authorized agencies, sets forth the type of unacceptable dual representation in adoption proceedings. The Legislature’s decision not to enact a statute prohibiting the representation of an adoptive parent by the attorney who represented the placing agency is significant. Had the Legislature found that such representation would involve the lawyer in representing differing interests or that it would otherwise be inconsistent with ethical principles, it would doubtless have taken action. Based on the record presented, where the interests of petitioner and Angel Guardian are identical, Family Court was obliged to respect petitioner’s choice of attorney (see Solow v W. R. Grace & Co., supra; Kassis v Teacher’s Ins. & Annuity Assn., 93 NY2d 611, 616-617 [1999]). Since petitioner’s initial burden in an adoption proceeding to establish that the child is freed and available for adoption has been met and the documentation submitted to the court undeniably establishes that adoption furthers the child’s best interests, there is no need to remand for a best interests determination. — 109 — On this record, it can be safely concluded that “[i]f the goal is indeed to encourage a familial permanency through adoption, it is difficult to imagine a more suitable . . . parent[ ] than petitioned ]” (Matter of Emilio R., 293 AD2d 27, 30 [2002]). Finally, while the dissent concedes that Angel Guardian is a private agency and that “Warren & Warren is not a public employee,” it nevertheless maintains that Code of Professional Responsibility DR 9-101 (b) (1) (22 NYCRR 1200.45 [b] [1]), which prohibits a lawyer from representing a private client in connection with a matter in which the lawyer participated personally as a public officer or employee, applies to this case. DR 9-101 (b) (1) has no application to this matter. Disciplinary action cannot be predicated on conduct which may be analogous to proscribed conduct; the conduct either falls within the rule’s proscription or it does not. If the attorney has not engaged in the precise conduct proscribed, the rule is not violated. In any event, there is no basis for an analogy between Angel Guardian and a public agency or between Warren & Warren and a public employee. Clearly, unlike a public agency or officer, Angel Guardian is not exercising any governmental power (cf., Handelman v Weiss, 368 F Supp 258 [1973] [attorney represented Securities Investor Protection Corporation, a nonprofit corporation created by Congress, whose board of directors is appointed by the federal government]; Flego v Philips, Appel & Walden, Inc., 514 F Supp 1178 [1981] [attorney employed by the American Stock Exchange, which is “a compliance arm of the Securities and Exchange Commission” (at 1181) and exercises governmental power (id.)]). On the contrary, Angel Guardian, statutorily charged with the care of children, is subject to governmental power. Pursuant to Social Services Law § 371 (10) (a), Angel Guardian is “empowered ... to care for, to place out or to board out children, . . . and ... is approved, visited, inspected and supervised by the [Department of Social Services].”* Since Warren & Warren is a private law firm representing a private agency, its disqualification does not serve DR 9-101 (b) (l)’s underlying purpose of ensuring public confidence in the integrity of public agencies and public processes by preventing — 110 — lawyers from using public office for private gain (NY St Bar Assn Comm on Prof Ethics Op 708 [1998]; see Hilo Metals Co. v Learner Co., 258 F Supp 23, 28-29 [1966]). Accordingly, the order of the Family Court, Bronx County (Sidney Gribetz, J.), entered on or about April 3, 2003, dismissing the adoption petition without prejudice, should be reversed, on the law, without costs or disbursements, the petition reinstated and the matter remanded to Family Court with the direction to calendar the matter promptly for the completion of the adoption. Footnotes [*] In any event, we note that since Angel Guardian is sponsored by the Sisters of Mercy of the Americas, Brooklyn Regional Community, and affiliated with Catholic Charities of Brooklyn and Queens (chttp://angelguardian.org>), it cannot, consistent with First Amendment principles, be deemed the functional equivalent of a public agency.