||This matter arose out of a custody case involving a child. The childís father committed suicide and his mother was unable to care for him. Mother turned over custody to her sister and brother in law, the Hís. Respondent represented the Hís in all matters regarding the child. The paternal grandparents, the Sís, also sought custody of the child. A court order was entered awarding primary custody to the Hís and periods of partial custody to the Sís.
Later, the childís mother consented to adoption of the child by the Hís. Respondent filed a petition for adoption which did not disclose the existence of a custody order establishing an interest in the Sís. Respondent did not notify the Sís of the adoption proceeding, relying on a legal judgment that the statutory list of parties who must be notified of an adoption (23 PS ß2711) does not include grandparents. There was conflicting testimony as to whether or not the interest of the grandparents protected by the custody order was disclosed in the course of the adoption hearing. The court granted the adoption.
Thereafter, Respondent filed a petition to vacate the custody order on an argument that the interest of the Sís was extinguished by the adoption. The Sís filed a petition to set aside the adoption due to the fact they had not been notified of the proceeding. Upon learning of the grandparentsí interests, the court vacated the adoption decree and reopened the adoption proceeding to allow the Sís to contest the adoption. The adoption and custody matters remained in litigation at the time of the hearing.
Based on credibility determinations, the Hearing Committee found that Respondent and his clients did not intentionally deceive the court and dismissed allegations that Respondent and his clients had committed acts of dishonesty. However, the Hearing Committee found that Respondent did violate RPC 3.3(d) (failing to disclose material facts to the court in an ex parte proceeding) by failing to inform the court of his decision not to notify the grandparents of the adoption proceeding. The Hearing Committee stressed that the issue lay not in the underlying decision not to notify the grandparents, but in failure to disclose this decision to the court.