174 [79 Op. Att’y

FAMILY LAW ) ADOPTION ) ATTORNEYS ) UNAUTHORIZED

PRACTICE OF LAW ) VALIDITY OF CONSENT TO ADOPTION

WHEN SOCIAL WORKER INFORMS BIRTH PARENT OF

RIGHTS

March 7, 1994

The Honorable Kenneth C. Montague, Jr.

House of Delegates

You have requested our opinion on two issues relating to the

process of adoption: (i) whether a social worker employed by a

licensed child placement agency “practices law without a license” if

the social worker informs a birth parent of his or her legal rights,

including the right to revoke consent to an adoption; and (ii) whether

a consent granted after a social worker or other employee of a child

placement agency informs the birth parent of his or her rights is

legally valid.

For the reasons stated below, we conclude as follows:

1. A social worker employed by a child placement agency

does not practice law without a license merely by informing a birth

parent of his or her statutory rights, including the right to revoke

consent to an adoption. The social worker must refrain from

offering comments about the legal consequences of any particular

course of action or otherwise giving legal advice about the birth

parent’s rights, however.

2. If the birth parent is an adult, the mere fact that the parent

was informed of his or her rights by a social worker or other

employee of a child placement agency does not call into question the

legal validity of the consent.
Gen. 174] 175

 This opinion uses the preferred term “birth parent,” rather than 1

the statutory term “natural parent.” The terms are synonymous.

 Consent is not required in certain foreign adoptions. FL §5- 2

313.1.

I

Consent to Adoption

Under §5-311(a) of the Family Law (“FL”) Article, Maryland

Code, birth parents generally have a right to decide whether their 1

children are to be placed for adoption: “Unless the natural parents’

rights have been terminated by a judicial proceeding, an individual

may not be adopted without the consent of ... the natural mother

[and] the natural father ....” See also FL §5-317(c)(2) (requiring 2

consent of birth parents to guardianship).

Once the birth parents have consented to an adoption, they

have a limited right to change their minds. FL §5-311(c)(1) provides

that, “within 30 calendar days after the required consent to an

adoption is filed under this section, or any time before a final decree

of adoption is entered, whichever occurs first, the individual ...

executing the consent may revoke the consent.” See also FL §5-

317(e) (revocation of consent to guardianship). This time-limited

revocation provision reflects the General Assembly’s desire to

protect both the birth parents, on whom the decision to consent to

adoption might weigh heavily, and the child and adoptive parents,

for whom certainty about their new family status is essential. The

consent of a birth parent “is not valid unless the consent contains an

express notice of the right to revoke consent ....” FL §5-314(a).

II

Practice of Law

With exceptions that are not pertinent here, only individuals

admitted to the Bar by the Court of Appeals may practice law in

Maryland. §§10-206 and 10-601 of the Business Occupations and

Professions (“BOP”) Article, Maryland Code. Unauthorized

practice of law is a misdemeanor and is also subject to injunction.

BOP §§10-606(a) and 10-406. “The goal of the prohibition against

unauthorized practice is to protect the public from being preyed upon
176 [79 Op. Att’y

by those not competent to practice law ) from incompetent,

unethical, or irresponsible representation.” In re Application of

R.G.S., 312 Md. 626, 638, 541 A.2d 977 (1988).

The term “practice law” is not precisely defined in the statute.

It encompasses “giving legal advice,” representing someone before

a court or government agency, or “performing any other service that

the Court of Appeals defines as practicing law.” BOP §10-

101(h)(1)(i). The term includes “giving advice about a case that is

or may be filed in a court.” BOP §10-101(h)(2)(iv).

For the most part, both the case law in Maryland and opinions

of this office have addressed unauthorized practice of law questions

that arose in administrative agency proceedings of one kind or

another. See, e.g., Public Service Comm’n v. Hahn Trans. Co., 253

Md. 571, 253 A.2d 845 (1969); Lukas v. Bar Ass’n, 35 Md. App.

442, 371 A.2d 669, cert. denied, 280 Md. 733 (1977); 76 Opinions

of the Attorney General 41 (1991); 65 Opinions of the Attorney

General 28 (1980). As far as we know, no Maryland case has

squarely considered the mere conveying of information about a

provision of law. However, one opinion of this office, later referred

to with approval by the Court of Appeals, did observe that a Register

of Wills would not engage in the unauthorized practice of law

merely by “the furnishing of forms and information” about the

opening of estates. 42 Opinions of the Attorney General 338, 340

(1957). See Riddleberger v. Goeller, 263 Md. 44, 57, 282 A.2d 101

(1971). See also Lukas v. Bar Ass’n, 35 Md. App. at 448 (“mere

filling out of forms ... or other purely mechanical functions” not

unauthorized practice). 

This conclusion ) that someone who is not a lawyer may

“furnish information” about the law ) surely accords with common

practice and common sense. Commerce and government would

grind to a halt if every piece of information about a statutory right or

obligation could be communicated only by a lawyer. In our view,

the line of unauthorized practice is potentially crossed when

someone who is not a lawyer purports to give professional advice

about another person’s legal situation or suggests a course of

conduct based on an interpretation of the law; the line is not crossed

by the unadorned provision of information. See, e.g., New Jersey

State Bar Ass’n v. Divorce Center of Atlantic County, 194 N.J.

Super. 532, 477 A.2d 415, 418-19 (1984); State Bar v. Guardian

Abstract & Title Co., Inc., 91 N.M. 434, 575 P.2d 943, 949 (1978);
Gen. 174] 177

Oregon State Bar v. Gilchrist, 272 Or. 552, 538 P.2d 913, 918

(1975). See generally Patricia S. Lamkin, Annotation, Sale of Forms

as Practice of Law, 71 A.L.R. 3d 1000 (1976).

Applying this general view of the issue, we conclude that a

social worker who simply informs a birth parent of the right to

revoke a consent to adoption is not engaged in the unauthorized

practice of law.

III

Informed Consent

Your second question is whether a birth parent’s consent to an

adoption is valid if the birth parent was informed of the right to

revoke by a social worker instead of a lawyer. Implicit in the

question is the suggestion that the consent would be valid only if it

were an informed consent, and that the consent could not be an

informed one unless the right were explained by a lawyer, who could

counsel the birth parent.

As a general matter, we believe that a consent to the adoption

of one’s child, like other decisions with legally significant

consequences, is valid if it is made knowingly and voluntarily.

Consent means a “voluntary agreement by a person in the possession

and exercise of sufficient mental capacity to make an intelligent

choice to do something proposed by another.” Black’s Law

Dictionary 305 (6th ed. 1990). 

A birth parent, having been informed by a social worker of the

right to revoke consent, certainly has the opportunity to obtain legal

advice if necessary. But a birth parent’s decision both to grant

consent and to leave the consent unrevoked surely can be knowing

and voluntary even without legal counsel.

Our conclusion in this regard is underscored by FL §5-314,

which states the circumstances under which a consent is not valid.

One circumstance is if the consent form itself omits “an express

notice of the right to revoke consent ....” FL §5-314(a). Conversely,

if the form does contain the required notice, the consent is

presumptively valid; the General Assembly obviously concluded that

most birth parents would be able to understand the right of
178 [79 Op. Att’y

 House Bill 1569, which you have introduced, would achieve this

3

result by amending FL §5-323(a)(2) to require appointment of counsel for

all birth parents.

revocation if they were simply presented with notice of it when they

were asked to evidence their consent.

The other circumstance is even more telling. FL §5-314(b)

invalidates the consent of a birth parent who is a minor “unless the

consent is accompanied by an affidavit of counsel ... that the consent

of the minor parent is given knowingly and willingly.” Thus, when

the General Assembly had a concern about the capacity of one

particular class of birth parents, minors, to give informed consent

without the help of a lawyer, it legislated the lawyer’s role.

Appointment of counsel likewise is required for birth parents who

are minors, FL §5-323(a)(3), but not for adult birth parents who are

capable of consenting to an adoption and who do so.

In short, a change in the law will be needed if the General

Assembly concludes as a policy matter that all birth parents should

receive legal counseling before their consent to an adoption becomes

final.3

IV

Conclusion

In summary, it is our opinion that a social worker employed by

a child placement agency does not engage in the unauthorized

practice of law by informing a birth parent of the parent’s statutory

right to revoke a consent to an adoption. Moreover, a consent from

an adult birth parent is not invalid merely because a social worker,

rather than a lawyer, informed the parent of the revocation right.

J. Joseph Curran, Jr.

Attorney General

Jack Schwartz

Chief Counsel,

 Opinions & Advice