Petrie, Matter of, SB-339
| Decision Date | 15 September 1987 |
| Docket Number | No. SB-339,SB-339 |
| Citation | 154 Ariz. 295,742 P.2d 796 |
| Parties | In the Matter of a Member of the State Bar of Arizona, Robert Alexander PETRIE, Respondent. |
| Court | Arizona Supreme Court |
Reynolds, Rhodes & Golston by Rodger A. Golston, Joe S. Reynolds, Mesa, for respondent.
Sandra Canter, Phoenix, State Bar Counsel.
This matter comes to us on the objections of the respondent attorney to the findings, conclusions and recommendation of the Disciplinary Commission.
The Local Administrative Committee of the Arizona State Bar after hearing evidence had recommended that respondent be censured for representing clients with adverse interests in violation of Disciplinary Rule 5-105(A) and (B), and for failing to carry out a contract of employment in violation of Disciplinary Rule 7-101(A)(2). 1
Respondent filed objections to the Committee's findings of fact, conclusions of law and recommendations. The Disciplinary Commission received additional evidence and heard arguments by counsel. The Commission affirmed the Local Committee's findings and conclusions, but the Commission recommended by a vote of five to one, that respondent be suspended from the practice of law for thirty days. The dissent favored the Local Committee's recommendation of censure.
This matter requires that we answer two questions:
1. Did respondent violate conflict of interest rules by representing multiple clients in an adoption proceeding?
2. If so, is a thirty-day suspension the appropriate sanction?
Our duty in State Bar disciplinary proceedings is to determine the facts and law independently while giving serious consideration to the findings and recommendations of the Disciplinary Commission and the Local Administrative Committee. See In re Neville, 147 Ariz. 106, 108, 708 P.2d 1297, 1299 (1985). The evidence of unprofessional conduct must be clear and convincing to justify disciplinary action. Id.; In re Moore, 110 Ariz. 312, 313, 518 P.2d 562, 563 (1974). Evidence is clear and convincing when its truth is "highly probable." Neville, 147 Ariz. at 111, 708 P.2d at 1302 (citations omitted).
The complainants, Gregory and Barbara Pietz (Pietzes) consulted with respondent on July 21, 1981 to express their interest in adopting an infant child. Respondent told the Pietzes that he did not know of any infants available at that time. The Pietzes and respondent agreed that if the Pietzes located a baby for adoption, respondent would represent them in the adoption. The Pietzes paid $30 for this consultation.
The Committee found that shortly before January 26, 1983, the Pietzes received information from a long-time friend, Carolyn Iverson, about a child that would be available for adoption. The Pietzes asked Iverson to make an appointment for respondent to meet with the natural mother, and to inform the respondent specifically that the mother was being referred by the Pietzes. Iverson called respondent, advised him that she had found a baby for the Pietzes, and made an appointment for respondent to meet with the natural mother. The Pietzes had moved to Sierra Vista sometime after their meeting with respondent, so Iverson gave respondent the Pietzes' current address and telephone number in Sierra Vista. She also told him that the Pietzes had become certified by the State of Arizona as acceptable to adopt children.
Respondent testified that he received a call from a woman who advised him of the baby and that "she knew of someone who was interested in an adoption," namely the Pietzes. Respondent claims he did not recognize the Pietzes' name from their visit one and a half years earlier.
The evidence indicates that respondent met with the natural mother and her sister, and he advised them that he had a set of adoptive parents in mind. On January 26 1983, he wrote to the Pietzes, telling them that he had recently interviewed a woman who intended to place a child for adoption and that the Pietzes' names were given when the interview was arranged. Respondent inquired in the letter whether the Pietzes were interested in the adoption. Respondent received a written response on February 3, 1983, in which the Pietzes stated that they were interested in adopting the child, that they were certified by the State to adopt children, and that they were very hopeful concerning the present situation. The Pietzes' letter disclosed knowledge of facts about the natural mother that respondent had not conveyed to them in his original correspondence. Respondent interpreted the Pietzes' letter as "equivocal" because the Pietzes had questions about the adoption and the fees.
Shortly thereafter, respondent received a phone call from another couple, the Buckmasters, who expressed an interest in adopting a second child. In response to respondent's inquiry on February 18, 1983, the natural mother's sister stated that the mother had no obligation to the Pietzes. At respondent's recommendation, the mother agreed to place the baby with the Buckmasters. The Committee found that respondent recommended placement with the Buckmasters because they were more cooperative than the Pietzes and they were locally situated. In addition, respondent was not "excited" about making two appearances in Cochise County, which may have been necessary if the Pietzes were to adopt the child.
When the Pietzes learned from Iverson that the child was going to another couple, Mr. Pietz called respondent, and respondent advised Mr. Pietz for the first time that he had recommended to the natural mother that the child be placed with someone else. Mr. Pietz told respondent that the Pietzes had referred the child to the respondent and consequently they wanted the child placed with them. Respondent refused to do so. Mr. Pietz then initiated this complaint with the State Bar.
The complaint charged that the respondent violated Disciplinary Rule 5-105(A) and (B), which provides:
DR 5-105. Refusing to Accept or Continue Employment if the Interests of Another Client May Impair the Independent Professional Judgment of the Lawyer
(A) A lawyer shall decline proffered employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, except to the extent permitted under DR 5-105(C).
(B) A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client, except to the extent permitted under DR 5-105(C).
It is common for the parties to an independent adoption to retain an attorney to represent their individual interests. 2 The adoption proceeding itself is unusual because generally the parties to the adoption--the natural parents and the adoptive parents--are not in a true adversary relationship. Usually, both sides in the proceeding have complementary interests and no real negotiating or posturing is necessary in most cases the natural parents want to find a good home for the baby and need to have the birthing expenses paid, and the adoptive parents want to provide a home for the baby and are willing to pay the expenses. Legal counsel is necessary only to facilitate the exchange and ensure that the legal requirements are met.
Despite the spirit of cooperation often present in an adoption, conflict of interest situations are likely to arise for an attorney involved in the proceedings. First, the interests of potential adoptive parents of the same child are always adverse to one another. In a situation involving independent sets of adoptive parents and only one available child, obviously one set of parents will be disappointed. An attorney cannot simultaneously represent both sets of adoptive parents without compromising his representation of one of them.
Second, and perhaps less apparent, the interests of the adoptive parents may be adverse to the interests of the natural parents. The decision to give the baby up for adoption is often a difficult one to make. The natural parents' attorney has a duty to provide them with counsel about such matters as paternity issues, economic matters, and the legal effect of signing the consent to adopt. See Howe, Adoption Practices, Issues, and Laws 1958-1983, 2 FAM.L.Q. 173, 184 (Summer 1983) (citing Policy Statements Regarding Family Law Approved by ABA Board of Governors, 1 FAM.L.Q. 105, 108 (June 1967)). Under our statute, the natural parents' consent to the adoption is not valid unless it is given at least 72 hours after the birth of the child. A.R.S. § 8-107(B). The statute protects the right of the natural parents to withhold a decision on whether to keep the baby until after the baby is born. The attorney must counsel the natural parents on the adoption decision right up until the natural parents consent to the adoption. Clearly, the adoptive parents want the natural parents to consent to the adoption rather than to keep the baby. It is obvious, therefore, that the natural parents' interests may be adverse to the interests of the adoptive parents, and the same attorney cannot represent both parties. See Op. No. 72-2 (Jan. 26, 1972) and Op. No. 94 (Feb. 12, 1962), Comm. on R. Prof. Conduct, Ariz. State Bar.
Notwithstanding the foregoing discussion, in some instances an attorney may be able to represent multiple parties in an adoption proceeding. Disciplinary Rule 5-105(C) provides for an exception to the dictates of DR 5-105(A) and (B). It provides that a lawyer may represent multiple clients "if it is obvious that he can adequately represent the interests of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each." DR 5-105(C). Under this exception, then,...
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