“Passive Strategy”
The web page of the Missouri Supreme Court summarizes a recent bar discipline decision
This disciplinary case alleges that an experienced adoption attorney misrepresented information to a birth father’s attorney and a circuit court as part of a “passive strategy” to help his client put her child up for adoption. In a decision written by Judge George W. Draper III, the Court finds the attorney violated particular rules of professional conduct and imposes discipline. All seven judges agree that the attorney violated three particular rules of professional misconduct; six judges agree he violated a fourth rule as well. Four judges agree that, as a result of his misconduct, the attorney should be suspended for six months, with the suspension stayed and the attorney placed on probation for two years.
Chief Justice Patricia Breckenridge concurs in part and dissents in part. Although she agrees with the discipline imposed and three instances of misconduct found, she disagrees that the attorney’s conduct also violated another of the rules.
In an opinion joined by two other judges, Judge Zel M. Fischer dissents. He agrees the attorney violated multiple rules of professional conduct as explained in the principal opinion. The author would hold, however, that case law and the disciplinary panel’s recommendation require suspension without leave to reapply for six months, at a minimum, but the author would disbar the attorney…
This case arises from an attorney’s conduct in an adoption case. When a young unmarried couple came together with their parents to discuss their unexpected pregnancy, the birth father said he wanted to raise the child with his parents; he did not want to place the child up for adoption. The relationship ended after this discussion, and the birth mother’s parents prevented the birth father from having further contact with the birth mother. The birth father retained an attorney in Kansas; the birth mother contacted a social worker who also operated an adoption agency. The social worker referred the birth mother to Sanford Krigel, a Missouri attorney specializing in adoption law with whom she had worked for about 20 years. When the birth mother and her parents met with Krigel in March 2010, they gave him the birth father’s name and address and told Krigel the birth father would not consent to adoption. Krigel employed a “passive strategy” in his representation, in which he and the birth mother would “actively do nothing” to communicate with the birth father or his attorney and would not advise the birth father or his attorney about the adoption plans, the child’s birth or the instigation of any legal proceedings. Later in March, the birth father’s attorney called Krigel, who represented that the child would not be put up for adoption without the birth father’s consent. When the birth father’s attorney suggested the couple needed counseling away from their parents, Krigel suggested they meet with the same social worker with whom he and the birth mother already were working (without disclosing that fact). During their counseling session, the birth father reiterated he would not consent to adoption and wanted to raise the child, preferably with the birth mother. In late March, the birth mother told the birth father her due date had been changed from early April 2010 to early May, which it had not. When the child was born, the birth father’s name was not indicated on the birth certificate, and no one notified either the birth father or his attorney. A hearing regarding the birth mother’s consent to terminate her parental rights was held April 6, 2010, in Jackson County; neither the birth father nor his attorney was aware of the hearing and so did not appear. In response to questioning from Krigel, the birth mother agreed that the birth father had been consulted at length and that he had not stepped forward since the child’s birth to claim any rights to the child. The circuit court terminated the birth mother’s parental rights and, immediately thereafter, heard a motion to transfer custody and for adoption. It then transferred custody of the child to the prospective adoptive parents. At some point in early May 2010, the father learned of the child’s birth and the mother’s deception about her due date, and he placed his name on the putative father registry. Later that month, he learned about the adoption proceedings and moved to intervene. In May 2011, the circuit court entered its judgment in the adoption proceeding, denying the adoptive parents’ petition and awarding legal and physical custody of the child to the birth father. The chief disciplinary counsel began disciplinary proceedings against Krigel in February 2014. Following a December 2014 hearing, a disciplinary hearing panel found Krigel violated four rules of professional conduct and recommended he be suspended indefinitely from the practice of law with no leave to apply for reinstatement for six months. Krigel rejected the panel’s recommendation; the chief disciplinary counsel asks this Court to impose appropriate discipline.
The summary notes
Various law professors and practitioners of professional responsibility and family law, who filed a brief as a friend of the Court, were represented by Barbara A. Glesner Fines of the University of Missouri-Kansas City School of Law in Kansas City.
(Mike Frisch)