## Facts

- Thomas R. Swihart, an Indiana attorney, was retained to represent a pregnant woman in placing her newborn for adoption.
- The client stated she did not want to know the adoptive parents’ identity and did not want the child placed locally.
- On the night of the birth, Swihart had the parents sign a “release and power of attorney” giving him temporary custody, stating he would hold the child until placement.
- After taking custody, Swihart and his wife decided to adopt the child themselves, but Swihart continued to act as the mother’s lawyer in the adoption matter.
- Swihart arranged for the parents to execute new adoption consents in a meeting attended by an attorney-notary who was Swihart’s personal friend; Swihart waited outside.
- During execution, the notary spoke favorably about Swihart and his family; when asked if Swihart was adopting the child, the notary confirmed it; the parents signed while confused.
- Swihart later asked the parents to sign an affidavit stating they would not appear at the adoption hearing; they refused, retained new counsel, and objected.
- A court ordered the child returned to the mother and held the consents invalid.
- The Disciplinary Commission brought professional-misconduct charges; a hearing officer made findings and recommendations; the Indiana Supreme Court imposed discipline.

## Issues

1. Whether an attorney violates conflict-of-interest and fiduciary-duty rules by pursuing personal adoption of a client’s child while continuing to represent the client in the placement.
2. Whether arranging and obtaining adoption consents through circumstances likely to confuse or influence the natural parents constitutes professional misconduct.

## Decision

- The Indiana Supreme Court found Swihart committed professional misconduct under the Indiana Code of Professional Responsibility.
- The Court concluded Swihart pursued the child for himself while still acting as the mother’s lawyer, creating a direct personal-interest conflict and breaching loyalty obligations.
- The Court determined Swihart acted contrary to the client’s expressed objectives regarding anonymity and nonlocal placement.
- The Court found the consent-execution process, arranged through Swihart’s friend and accompanied by favorable commentary about Swihart, contributed to confusion and undermined informed consent.
- The Court suspended Swihart from the practice of law for 30 days, effective February 7, 1988, with automatic reinstatement after the suspension period.

## Legal Principles

- A lawyer owes a fiduciary duty of undivided loyalty and may not place personal interests in direct conflict with a client’s objectives while continuing the representation.
- When a lawyer’s personal interests become adverse to the client in the same matter, continued representation violates conflict-of-interest rules absent adequate protection of the client’s interests.
- A lawyer must pursue the client’s lawful objectives and may not substitute the lawyer’s preferences for the client’s instructions to advance personal gain.
- Conduct that creates confusion or exerts influence in obtaining legally significant consents, especially where the lawyer has a personal stake, violates duties of candor and fair dealing associated with fiduciary status.

## Conclusion

The Indiana Supreme Court disciplined Swihart for converting a client’s adoption placement into an opportunity for personal acquisition while still serving as the client’s lawyer, and for facilitating confused consents under circumstances reflecting disloyalty and a personal-interest conflict, warranting a 30-day suspension.


In re Swihart, 517 N.E.2d 792 (Ind. 1988)