(a) The Legislature finds and declares that an attorney’s ability to effectively represent a client may be seriously impaired when conflict of interest deprives the client of the attorney’s undivided loyalty and effort. The Legislature further finds and declares that the relation between attorney and client is a fiduciary relation of the very highest character, and binds the attorney to the most conscientious fidelity.
(b) The Legislature finds that Rule 2-111(A)(2) of the State Bar Rules of Professional Conduct provides that an attorney shall not withdraw from employment until the attorney has taken reasonable steps to avoid foreseeable prejudice to the rights of the client, including giving due notice to the client, allowing time for employment of other counsel, delivering to the client all papers and property to which the client is entitled, and complying with applicable laws and rules.
(c) The Legislature declares that in an independent adoption proceeding, whether or not written consent is obtained, multiple representation by an attorney should be avoided whenever a birth parent displays the slightest reason for the attorney to believe any controversy might arise. The Legislature finds and declares that it is the duty of the attorney, when a conflict of interest occurs, to withdraw promptly from any case, advise the parties to retain independent counsel, refrain from taking positions in opposition to any of these former clients, and thereafter maintain an impartial, fair, and open attitude toward the new attorneys.
(d) Notwithstanding any other law, it is unethical for an attorney to undertake the representation of both the prospective adoptive parents and the birth parents of a child in any negotiations or proceedings in connection with an adoption unless a written consent is obtained from both parties. The written consent shall include all of the following:
(1) A notice to the birth parents, in the form specified in this section, of their right to have an independent attorney advise and represent them in the adoption proceeding and that the prospective adoptive parents may be required to pay the reasonable attorney’s fees up to a maximum of five hundred dollars ($500) for that representation, unless a higher fee is agreed to by the parties.
(2) A notice to the birth parents that they may waive their right to an independent attorney and may be represented by the attorney representing the prospective adoptive parents.
(3) A waiver by the birth parents of representation by an independent attorney.
(4) An agreement that the attorney representing the prospective adoptive parents shall represent the birth parents.
(e) Upon the petition or motion of any party, or upon motion of the court, the court may appoint an attorney to represent a child’s birth parent or parents in negotiations or proceedings in connection with the child’s adoption.
(f) The birth parent or parents may have an attorney, other than the attorney representing the interests of the prospective adoptive parents, to advise them fully of the adoption procedures and of their legal rights. The birth parent or parents also may retain an attorney to represent them in negotiations or proceedings in connection with the child’s adoption. The court may award attorney’s fees and costs for just cause and based upon the ability of the parties to pay those fees and costs.
(g) In the initial communication between the attorney retained by or representing the prospective adoptive parents and the birth parents, or as soon thereafter as reasonable, but before any written consent for dual representation, the attorney shall advise the birth parents of their rights regarding an independent attorney and that it is possible to waive the independent attorney.
(h) The attorney retained by or representing the prospective adoptive parents shall inform the prospective adoptive parents in writing that the birth parent or parents can revoke consent to the adoption pursuant to Section 8814.5 and that any moneys expended in negotiations or proceedings in connection with the child’s adoption are not reimbursable. The prospective adoptive parents shall sign a statement to indicate their understanding of this information.
(i) Written consent to dual representation shall be filed with the court before the filing of the birth parent’s consent to adoption.
(Amended by Stats. 2019, Ch. 115, Sec. 124. (AB 1817) Effective January 1, 2020.)