Opinion 584

By Committee on Professional Ethics

NEW YORK STATE BAR ASSOCIATION
Committee on Professional Ethics

Opinion #584  12/15/1987-(20-87)

Topic: Dual representation; intermediaries; surrogate parenting contracts; Preparation of such contracts; conflict of interest; non-legal services in relation thereto
Digest: Attorney may assist in preparation of surrogate parenting contract and provide non-legal consulting services in relation thereto, if not illegal; attorney may not represent both a party to such a contract and an intermediary
Code: Canon 7; EG 1-5; DR 1-102(A), 2-103(A), 5-105(A), (B), (G), 7-102(A)(7)A lawyer proposes to serve as public relations and media consultant (independent from the lawyer’s legal practice) to an individual who acts as an intermediary between couples seeking the services of a surrogate mother and would-be surrogates from that intermediary and also to provide legal representation in connection with surrogate parenting contracts to couples and potential surrogates referred to the lawyer by the intermediary.The following questions are posed:

QUESTIONS

1. Is it ethically proper for an attorney to provide legal advice and prepare a contract concerning surrogate parenting?
2. May an attorney properly represent both a potential surrogate mother and an individual who acts as intermediary between couples seeking the services of a surrogate mother and the would-be surrogates?
3. Do the ethical standards governing the activities of an attorney advising parties to a surrogacy contract apply to the attorney’s related but non-legal activities as well?

OPINION

It is unethical for an attorney to assist others in illegal conduct. DR 7-102(A)(7); N. Y. State 455 (1976) It is neither the practice nor the province of this Committee to determine matters of law, and, therefore, we offer no opinion on the legality of surrogate parenting and contracts therefore. Before commenting on the ethical aspects of the questions posed, however, we note In re Baby Girl L.J., 132 Misc. 2d 972 (1986), which held that section 374(6) of the New York Social Services Law, prohibiting certain payments in connection with an adoption, “does not expressly foreclose the use of surrogate mothers or the paying of compensation to them under parenting agreements.” Id. at 978. In addition, the court requested the Legislature to review the practice of surrogate parenting in order to determine whether statutes should be enacted to prohibit clearly or to permit the practice. Id. To date, however, there has been no definitive statement concerning the legality of surrogate parenting or the validity of surrogacy contracts in New York.It is the individual duty of an attorney asked to prepare a surrogacy contract or to provide legal advice in relation to such activities to determine the legality thereof. If he or she determines that such conduct or activity is illegal, the lawyer must refuse to draft the contract or otherwise assist such conduct. DR 7-102(A)(7). If the lawyer is satisfied that the contract or activity is not illegal but instead determines that it is, at worst, voidable or unenforceable, there is nothing in Canon 7 or elsewhere in the Code of Professional Responsibility to prohibit the lawyer from drafting such a contract or assisting in such conduct, provided the risks inherent therein (that the contract may be voidable or unenforceable or the conduct may otherwise be challenged) are discussed with the client. N.Y. City 81-67; NY State 545 (1982) and 126 (1970)With respect to the issue of the propriety of an attorney’s representing both a potential surrogate mother and an intermediary in the surrogacy arrangement, the Committee believes that it would be improper for an attorney to represent any prospective surrogate mother in connection with any surrogate parent contract in which the intermediary client has an interest for so long as the attorney represents the intermediary or looks forward to further opportunities to represent the intermediary. DR 5-105 provides in pertinent part that a lawyer shall decline offered or continued 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… (or) his representation of another client, or if it would be likely to involve him in representing differing interests” (DR 5-105(A), (B)) unless “it is obvious that he can adequately represent the interest 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)). In the Committee’s opinion, the interests of a prospective party to a transaction and an intermediary whose compensation depends, directly or indirectly, upon his or her success in arranging that transaction is so fraught with the potential for conflict, particularly in such a sensitive area as surrogate parenting, that the “obvious” test of DR5-105(C) can rarely, if ever, be met. Cf. NY State 68 (1968) (in which this Committee ruled that it is unethical for an attorney to represent both the adoptive and natural parents in an adoption proceeding, even after full disclosure and express consent, because the potential for conflict in such situations is, in most cases, very great); ABA Inf. Op. 87-1523 (stating that, with the exception of step-parent adoptions, a lawyer may not ethically represent both the adoptive and biological parents in a private adoption proceeding because of the need to protect the confidences of each party and the likelihood that dual representation presents a serious conflict of interests).Once the professional relationship with the intermediary has ended without prospect or hope for its renewal, there is nothing in the Code of Professional Responsibility or elsewhere that would preclude an attorney from accepting referrals from the intermediary whom he or she used to represent. It must be noted, however, that it remains a violation of The Lawyer’s Code of Professional Responsibility for a lawyer to solicit employment in violation of any statute or court rule. DR 2-103(A); see, Judiciary Law, §479 1 Matter of Koffler, 51 NY 2d 140 (1980), cert. denied, 450 U.S. 1026 (1981); In re Greene, 544 NY 2d 118 (1981), cert. denied, 455 U.S. 1035 (1982); In re Alessi, 60 NY 2d 229 (1983); NY State 566 (1984); NY State 549 (1983). In addition, it is possible that a lawyer who accepts repeated referral’s from a single source may experience greater temptation to avoid the strictures of the Code than one who does not and is, therefore, under a perhaps greater burden to examine his conduct carefully and to be wary of influences that may serve to dilute his professional loyalty or independence. See, N.Y State 467 (1977).With respect to the third question posed, it is not improper for a lawyer to engage in a business other than the practice of law provided the lawyer does not violate any ethical or legal rules. NY State 307 (1973). It is important to emphasize, however, that a lawyer is held to the standards of professional conduct set forth in the Code of Professional Responsibility even in non-legal activities. Thus, it would be unethical for an attorney to assist others in illegal conduct irrespective of whether that assistance were in a legal or non-legal capacity. DR 1-102(A) If, therefore, the lawyer determines surrogacy contracts are illegal, a lawyer would violate the Code by assisting the creation or execution of such contracts in a non-legal capacity (e. g., as a public relations or advertising consultant to an intermediary). Likewise, an attorney who represents more than one party in a surrogate arrangement, although he or she is acting in a non-legal capacity with respect to one or both of the parties, would be acting unethically.

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