I agree with Justice Sullivan that the order dismissing the petition should be reversed, because the law as it currently stands requires that outcome, particularly, and most persuasively in my view, in light of the construction offered of Social Services Law § 374 (6). I also agree that, on this record, this child’s best interests will be served by concluding this adoption as this Court directs.
Notwithstanding my vote to uphold this adoption, however, I consider it important to comment on the current state of the law and the Code of Professional Responsibility as they relate to the issues this appeal presents. I believe the Family Court Judge correctly viewed with skepticism an adoption where, as here, the same law firm: (1) had represented the agency in its successful Social Services Law § 384-b proceeding to terminate the parental rights of the biological mother to this child; (2) subsequently represented the foster parent in her separate proceeding to adopt the child; and (3) on an ongoing basis has been and is—both before and after those two proceedings— privately, separately and contemporaneously retained in unrelated termination cases to represent the very same agency.
I agree with Justice Sullivan’s analysis of the facts of this case, i.e., that these facts satisfactorily demonstrate the absence of an actual conflict of interest arising from this law firm’s dual representation of the agency and foster mother after full disclosure and consent in this particular instance. Further, while I agree that Justice Sullivan interprets Social Services Law § 374 (6) correctly, I respectfully disagree with the state of the law as it presently stands.
Consequently, where, as here, the same law firm represents both the agency in the termination proceeding and thereafter the prospective adoptive parent, with disclosure and consent in the adoption proceeding, I believe it would be completely appropriate, prudent and consistent with the fundamental aims of *111the Family Court Act (see Family Ct Act § 241) to appoint a law guardian to represent the child under such circumstances. Otherwise, in my judgment, one of the Family Court Act’s fundamental goals—to ensure that a child’s best interests are always paramount and will remain protected—will unnecessarily be placed at risk.
The authority to appoint a law guardian “on its own motion” is clear when, “in the opinion of the family court judge, such representation will serve the purposes of this act” (Family Ct Act § 249 [a]). Moreover, the Legislature has emphasized the importance “to the extent practicable and appropriate, [of] appointing] the same law guardian who has previously represented the child” (Family Ct Act § 249 [b]). That policy statement is especially relevant and compelling for this type of situation where a law guardian familiar with a family’s history would likely be in a position, often superior to that of, and sooner than, the judge, to perceive the emergence of a conflict of interest that might have the potential to compromise the child’s best interests. This is so because the law guardian would be the only nonjudicial person in this type of situation whose legal and ethical obligation is to act in the best interests of the child to the complete exclusion of the interests of all others. Thus, where one lawyer represents the adoptive parent after having earlier represented the agency in the related termination proceeding, a law guardian who earlier represented the child’s interest in the termination proceeding will be the only advocate who knows the facts, the family history and the parties, and who, throughout all the proceedings, will have had a single-minded loyalty to the child and the child alone.
One could hardly dispute, and I fully appreciate and harbor no doubt, that in the overwhelming majority of cases the agency and the foster/adoptive parent(s) are highly motivated and have the adoptive child’s best interests at heart. However, no system run by and for human beings can ever be blessed with perfection in every instance. History surely knows cases where mistakes have been made and children’s best interests have been secondary or, even worse, irrelevant to an adult’s agenda. Therefore, when this type of dual representation of counsel is permitted—even with disclosure and consent—a child’s best hope of being fully protected, and, indeed, of appearing to be fully protected, lies with representation by an independent and trained law guardian. Indeed, as is set forth in New York State Bar Association Committee on Professional Ethics Opinion 708 (1998):
*112“The need to preserve public confidence in the integrity of the foster care and adoption processes makes it important that the foster care agency and its representatives remain free of influences that might compromise their ability to act in the child’s best interests. The interests of the adoptive parents, in contrast, are private ones: typically, their goal is to adopt the child. These differing interests of the agency and individuals will often lead them to pursue the same objective, but this will not invariably be true.”
Thus, it appears that a substantial segment of the organized bar believes that dual representation in similar situations is inappropriate and unwise (see NY St Bar Assn Comm on Prof Ethics Op 708 [1998], relying on Code of Professional Responsibility DR 5-101 [a] [22 NYCRR 1200.20 (a)]; DR 5-105 [a] [22 NYCRR 1200.24 (a)]; DR 5-108 [a] [22 NYCRR 1200.27 (a)]; DR 9-101 [b] [1] [22 NYCRR 1200.45 (b) (1)]). I also note that in addition to the bar’s lack of confidence in this practice, at least two judges of the Family Court are similarly unsettled by the potential for a conflict of interest wrought by such dual representation (see Matter of A., 189 Misc 2d 500 [2001]; Matter of Vincent, 158 Misc 2d 942 [1993], relying on Code of Professional Responsibility Canon 9).
Indeed, the express purpose of Canon 9, which directs all lawyers to avoid even the appearance of impropriety, is to promote public confidence in our system of justice and in the various agencies created to serve that system (see NY St Bar Assn Comm on Prof Ethics Op 708 [1998]). In order to accomplish this purpose, a lawyer may not represent a succeeding client in substantially related matters, regardless of whether consent is given. Accordingly, “in some instances, because the relationships or interests create a substantial likelihood of profound conflict . . . , representation is not permitted under any circumstances” (Matter of Kelly, 23 NY2d 368, 378 [1968] [emphasis added]). This is especially true where the public interest is involved (id. n 3). Thus, an attorney must not advance or appear to advance conflicting interests, “[particularly . . . whe[re] the public interest is implicated,” and where “the conflict extends to the very subject matter of the litigation” (Greene v Greene, 47 NY2d 447, 452 [1979]).
Indeed, since a child’s best interests are and should always remain the paramount concern, I see the need for separate rep-*113reservation as even more compelling when the adoptive parents are represented by an attorney who had and has an ongoing lawyer-client relationship with the subject agency in this and other matters. Although in the great majority of adoptions a law guardian is unnecessary and therefore appropriately not appointed, that is not always the case, for example, where, as here, the child’s best interests are particularly vulnerable because he has no advocate with undivided loyalty to him in the event a potential conflict appears or an actual conflict arises between the agency and the adoptive parent, both of whom are represented by the same attorney. Thus, and even though I recognize that an actual conflict may arise in very few cases, I suggest that, at the very least, whenever dual representation is allowed, a law guardian should be appointed.
Furthermore, here, the foster care agency serves as the functional equivalent of a public agency within the meaning of Social Services Law § 371 (10). An attorney representing an agency in the exercise of its duties on behalf of the public may be considered the functional equivalent of a public employee, and, therefore, should avoid the representation of private clients in the same matters in which that attorney had substantial and different responsibilities (see e.g. NY St Bar Assn Comm on Prof Ethics Op 708 [1998] [lawyer representing foster care agency in surrender proceedings or termination of parental rights proceedings may not concurrently or subsequently represent prospective adoptive parents of subject child]; NY St Bar Assn Comm on Prof Ethics Op 543 [1981] [Legal Aid attorney is public employee, thus prohibited from representing clients previously represented by lawyer in capacity as Legal Aid attorney]; NY St Bar Assn Comm on Prof Ethics Op 514 [1979] [court-appointed guardian ad litem for conservatee may not subsequently accept employment with conservator]; Handelman v Weiss, 368 F Supp 258 [1973] [assistant to attorney appointed by Securities Investor Protection Corporation is a representative of the government’s interests]; Flego v Philips, Appel & Walden, Inc., 514 F Supp 1178 [1981] [compliance attorney for American Stock Exchange is a “public employee”]).
Even though an attorney may be protecting the present client’s interest, “there is a danger that the lawyer who accepts employment by the prospective adoptive parents shortly after representing the foster care agency will be perceived by the public to have acted for private advantage” (NY St Bar Assn *114Comm on Prof Ethics Op 708 [1998]),* thus undermining public confidence in the system. Therefore, regardless of the existence of a waiver or the absence of an actual conflict, I nonetheless believe that the best way to ensure continued public confidence in the integrity of agencies created to serve our judicial system, and to serve the children whose interests that system is designed to protect, is, by statutory amendment, to prohibit categorically such dual representation in these proceedings.
Currently, as Justice Sullivan points out, Social Services Law § 374 (6) provides only that “No attorney or law firm shall serve as the attorney for, or provide any legal services to both the natural parents and adoptive parents.” It is silent on the issue of the propriety of dual representation of an adoption agency and an adoptive parent, an omission which, in my view, the Legislature, not the courts, should correct.
Therefore, for the foregoing reasons, I urge the Legislature to revisit this issue and amend section 374 (6) of the Social Services Law accordingly.
For example, if information about the child, the biological or the adoptive parents, or the foster care agency were to come to light that might delay the proceedings or jeopardize the adoption, the perception might be that the attorney may be acting in the interest of the foster care agency at the expense of his or her client or to help the agency with which he or she still maintains a lawyer-client relationship.