Missouri Lawyers Weekly
March 6, 2006
$3 million verdict 'scary' for adoption lawyers
Clarifying whom you represent is critical
By Tom Harrison
A recent $3 million malpractice verdict against a Kansas City adoption lawyer is a wake-up call to attorneys in these cases to make sure they clarify in writing to all parties exactly whom they are representing, experts say.
The lawyer consulted with the adoptive parents about having an adoption go forward even after the birth mother had changed her mind and decided to keep the baby. Although the attorney acted on behalf of the adoptive parents, a jury found that he had earlier established an attorney-client relationship with the birth mother and owed a duty of loyalty to her.
The case is "just plain scary" for adoption lawyers because in many parts of the state it's common for there to be one lawyer in an adoption proceeding, and it can be unclear whom that lawyer is representing, says the defense attorney in this case, James Ensz of Kansas City.
Such a situation is "fraught with peril" for the attorney, says Catherine Keefe, a Clayton adoption lawyer.
It's not unusual for there to be one lawyer in an adoption case and for there to be a potential misunderstanding of the lawyer's role, agrees Ann Bauer of St. Louis, the immediate past chair of the Missouri Bar's Family Law Section.
Attorneys should be "extremely careful" to clarify in writing to all parties exactly whom they are representing and to make sure the parties understand the lawyer's position, advises Bauer.
"It's not about what the attorney thinks; it's about what the client thinks," she says. "You can't be too careful."
Robert Langdon of Lexington, Mo. who tried the case for the plaintiff along with Michael Taylor of St. Joseph, Mo., says there should always be two lawyers in any adoption, one of whom clearly represents the adoptive parents and one of whom clearly represents the birth mother.
"If you don't have two lawyers in an adoption, you're just asking for it," Langdon says.
The verdict was first reported in the Feb. 20 issue of Missouri Lawyers Weekly.
What the lawyer did
A lawyer in Pennsylvania who represented the adoptive parents contacted attorney Sanford Krigel of Kansas City and asked him to represent the birth mother. Because the birth mother lived in Nodaway County, Krigel passed the case along to a lawyer who practiced in that area.
In the meantime, however, the Pennsylvania lawyer contacted the birth mother and told her that Krigel was her lawyer. There was evidence that she called Krigel and they had a phone conversation that lasted roughly 12 minutes. Allegedly, Krigel explained to her the effect of a consent form and told her at what point she would no longer be able to revoke the adoption if she changed her mind.
Because the Nodaway County lawyer was unfamiliar with interstate adoption practice, Krigel's office provided him with assistance in handling the paperwork. Krigel was paid for this by the adoptive parents.
After the baby was born, the adoptive parents rented adjacent hotel rooms for themselves and the birth mother. Five days after the birth, the mother told the adoptive parents that she had changed her mind and wanted to keep the baby.
The adoptive parents then asked for some time alone with the baby before they left. Once alone with the baby, however, they locked themselves in their hotel room and began calling lawyers, including both Krigel and the Nodaway County lawyer.
The jury determined that Krigel provided advice and assistance to the adoptive parents in removing the baby from the state. Although there was considerable dispute over the point at which the adoption could be revoked, the jury determined that the birth mother could have succeeded in stopping the adoption if Krigel had acted on her behalf.
After four years of litigation, the adoptive parents and the birth mother settled the case, with the birth mother receiving joint legal custody and visitation. Meanwhile, the mother sued Krigel for malpractice.
Who represented whom?
The key question at trial was whether Krigel had established an attorney-client relationship with the mother, such that he owed her a duty of loyalty.
The plaintiffs argued that Krigel had been hired with the understanding that he would represent the mother, that he did legal work in furtherance of the adoption, that he spoke with the mother on the phone and that he provided her advice to the effect that she could change her mind any time before the adoption became final.
The defense argued that Krigel never accepted the representation and instead passed the case on to another attorney. Although he then assisted that attorney with the paperwork, he believed he was doing so on behalf of the adoptive parents, not the mother, the defense claimed.
Krigel says he has no memory of the phone call with the birth mother, although there was evidence that it occurred.
Ensz, the defense counsel, argued that it was unlikely that Krigel would tell the mother that she could change her mind any time before the adoption became final because that's not the law. "It would be like a mathematician telling someone that two plus two equals five," he says.
The defense also argued that even if Krigel explained to the mother the effect of a consent form, this did not amount to legal advice. According to Langdon, Krigel said such an explanation would amount merely to providing factual information, akin to "where the courthouse is located."
But Langdon argued that it did amount to legal advice, since it involved interpretation of a statute.
An expert for the plaintiff, Professor James Jeans, told the jury that once a lawyer speaks to a person and gives legal advice, that person is a client and is owed a duty of loyalty, Langdon says. Jeans is a professor emeritus at the University of Missouri-Kansas City School of Law.
Jeans told the jury that a lawyer switching sides on a client "is the worst thing that can happen. In military law, we call it treason."
At a minimum, says Langdon, Krigel should have refused to give advice to the adoptive parents after the conflict arose and should have contacted the birth mother and advised her to hire another attorney.
The jury awarded about $430,000 in economic damages, consisting of the mother's attorney fees in seeking to undo the adoption as well as her expenses in visiting the child. The remainder of the $3 million verdict was for her emotional distress.
Ensz plans to appeal, arguing among other things that emotional distress damages should not be available in a legal malpractice case. He also claims that the mother's actual economic damages were only about $50,000, an amount that would be more than covered by credits from settlements with other parties.
Affects more than adoption
The issues in this case affect more than just adoption proceedings; they can arise in almost any "uncontested" family law case, including divorce, paternity and modification matters, says Bauer.
She says it's increasingly common for couples to talk things out, reach an agreement and then try to hire one lawyer to handle the paperwork. A lawyer must be extremely careful to make clear that he or she represents only one side because even sophisticated clients often have trouble understanding that, she says.
But the issue is especially important in adoption cases because in those cases the parties frequently hire a single lawyer, at least in more rural areas.
As to such situations, this jury verdict is an "eye-opener," says Langdon.
The issue is economic; the birth mother generally can't afford a lawyer, and the adoptive parents are often unwilling or unable to pay for two attorneys.
"An adoption can cost $20,000 to $30,000 as it is," says Adam Pertman, executive director of the Evan B. Donaldson Adoption Institute in New York, a leading national policy organization. "It's hard to tell people that they have to spend another $2,000 to $3,000 on top of that to hire a second lawyer. In the real world, often it just doesn't happen."
Keefe points out that in St. Louis and Kansas City, it's often possible to have an appointed lawyer represent the birth mother at no cost to the adoptive parents, but that's not true in other parts of the state.
The potential for a conflict is very real. Women considering adoption change their minds in about 50 percent of cases, Pertman says.
Keefe says that when she represents adoptive parents and there is no lawyer to represent the birth mother, she always tries to have a social worker or counselor available so the mother at least has some independent person with whom she can talk.
She also tries to make sure that the social worker or counselor is not the same person who conducts the home study of the adoptive parents, since that also creates the potential for a conflict.
In general, the best advice is to "cover everything with paper," says Keefe. "In an adoption it's really important not to blur the lines, and to make sure everyone knows who's responsible for what."
Facts of the case
Type of Action: Legal malpractice
Type of Injuries: Adoption finalized after birth mother changed her mind
Court/Case Number/Date: Jackson County/00CV223201/Feb. 14, 2006
Caption: Chandrika Collins v. Sanford Krigel and Krigel & Krigel P.C.
Judge, Jury or ADR: Jury
Name of Judge: Jay Daugherty
Verdict or Settlement: $3 million verdict
Special Damages: $431,215 economic damages
Allocation of Fault: N/A
Last Demand: $1 less than the available insurance policy limits (estimated at near $800,000 on a $1 million insurance policy that decreased for costs of defense)
Last Offer: $25,000
Attorneys for Plaintiff: Michael L. Taylor and Kenneth E. Siemens, Murphy, Taylor, Siemens & Elliott P.C., St. Joseph, Mo., and Robert Langdon, Langdon & Emison, Lexington, Mo.
Insurance Carrier: The Missouri Bar Plan
Plaintiff’s Experts: James Jeans (law professor emeritus, University of Missouri-Kansas City School of Law) and Dr. John O.Ward
Defendant’s Experts: James W. Wait
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