In re Swihart

Attorney Thomas Swihart (defendant) was retained to represent a pregnant mother in the placement of her child with adoptive parents. The mother told Swihart that she did not want to know the identity of the adoptive parents and did not want the child to be placed in the local area. On the night the child was born, Swihart had the mother sign a release and power of attorney, which gave Swihart temporary custody of the child. Swihart told the mother and father that he would retain custody until the child was placed with adoptive parents. However, Swihart and his wife decided to adopt the child instead. Swihart called the mother and father and told them that he was coming over with a notary to execute new adoption consent forms. The notary was an attorney and personal friend of Swihart. Swihart introduced the notary to the mother and father and then waited outside. The notary commented on how well he knew Swihart and how nice Swihart’s family was. The mother asked the notary if Swihart was adopting the child, and the notary responded in the affirmative. The mother and father were confused but still signed the consent forms. Afterward, Swihart sent the mother and father an affidavit to sign, which stated that the mother and father would not appear at the adoption hearing. The mother and father declined to sign the affidavit and instead hired a different attorney to object to the adoption. A court ordered the child to be returned to the mother, and the adoption consent forms were found to be invalid. Swihart was charged with misconduct under Indiana’s Code of Professional Responsibility for continuing to represent the mother after he and his wife decided to adopt the child, as well as for not following the mother’s wishes in the adoption.