I disagree with the majority and believe that the order of the Family Court, dismissing the petition without prejudice to the filing of a new petition by a different attorney, should be affirmed.
The child, Gustavo, was placed with the Administration for Children’s Services as a result of the mother’s drug abuse, and subsequently transferred to the care of Angel Guardian Children and Family Services. On or about June 11, 2002, an order was entered terminating the parental rights of the natural parents and freeing the child for adoption. The firm of Warren & Warren, P.C. represented the foster care agency in the termination proceeding.
On November 6, 2002, a petition was filed by the maternal grandmother, seeking to adopt Gustavo. Warren & Warren also represents this prospective adoptive parent in this subsidized adoption proceeding. Simultaneously to this representation of petitioner herein, Warren & Warren continues to represent the foster care agency in other unrelated termination of parental rights proceedings. The foster care agency itself also remains an *115integral participant in this adoption proceeding. It has submitted an investigative report and recommendation and executed a stipulation consenting to an order of reference, which are subject to the court’s approval, and is eligible to receive an adoption fee from the Commissioner of Social Services.
In the present context, where the public trust is implicated and counsel must be free of influences that might compromise its ability to act in the best interests of the child, this successive and dual representation presents an inherent conflict of interest relating to the very subject matter of the proceeding, undermines public confidence in our court system, and creates an untenable appearance of professional impropriety (see generally Greene v Greene, 47 NY2d 447, 452 [1979]).
Where there is successive and simultaneous representation as in the present case, there is always a risk that the public interests of the foster care agency and the private interests of the adoptive parent will conflict in a manner that will impair counsel’s exercise of independent professional judgment on behalf of one or both clients. Even where the interests appear to coincide, as urged by the majority, there is always a possibility that circumstances may change. For example, information may come to light that requires the foster care agency to advocate a different outcome or to present information to the court that is adverse to the adoptive parent. In other cases, conflicts may arise as to the adequacy or inadequacy of services provided by the foster care agency. A lawyer who represents both the foster care agency and the adoptive parent cannot pursue these issues without being disloyal to one or the other of the clients.
Further, the need to preserve public confidence in the integrity of the foster care and adoption processes mandates 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 (see Matter of A., 189 Misc 2d 500 [Fam Ct, Queens County 2001]; Matter of Vincent, 158 Misc 2d 942 [Fam Ct, NY County 1993]; see also NY St Bar Assn Comm on Prof Ethics Op 708 [1998] [Ethics Op 708]; Code of Professional Responsibility DR 9-101 [b] [1] [22 NYCRR 1200.45 (b) (1)]; DR 5-105 [b] [22 NYCRR 1200.24 (b)] [all finding that it is improper for the law firm that represented the agency in the termination proceeding to represent the prospective adoptive parent in the subsequent adoption proceeding]). In Ethics Opinion 708, the Committee on Professional Ethics, citing Matter of Vincent (supra), advised:
*116“The court’s analysis led to the conclusion, with which we agree, that a lawyer may not simultaneously represent the foster care agency and the adoptive parents. This is true even if the agency and individual clients offer to consent to the representation after being fully apprised of the risks. The dual representation is impermissible because it ‘would be likely to involve the lawyer in representing differing interests,’ DR 5-105 (A), and it would not be ‘obvious that the lawyer can adequately represent the interest of each [client].’ DR 5-105 (C). Further, as the court noted, ‘ [a]ll lawyers are enjoined to promote public confidence in our judicial system and in the legal profession and to “avoid even the appearance of professional impropriety.” ’ ”
The majority asserts that Matter of Vincent (supra), on which Matter of A. (supra) relies, is distinguishable because Matter of Vincent addressed an actual conflict of interest. This misses the point.
In Matter of Vincent (supra), the agency prepared a “home study” of the prospective adoptive home. Because the agency was so fully involved, the court found that its report could not fulfill its need for an adequate basis for determining the propriety of approving the adoption. The court then ordered the Probation Department to conduct an independent study of the prospective adoptive home which differed in many ways from the agency’s report. It was thus clear that the agency was not “disinterested” as required by Domestic Relations Law § 112 (7) and that the foster parent’s interests were not adequately represented by the foster parent’s attorney who also represented the adoption agency. While an actual conflict existed, the rationale for disapproving the dual representation was broader. The Family Court explained that “[s]uch dual representation should not be permitted because a conflict could arise at any time. Every petitioner is entitled to permanently loyal representation from the beginning of the case” (Matter of Vincent, 158 Misc 2d at 945). Thus, the salient factor was that a conflict may arise at any time, not that one actually existed.
This is true even where the parties consent to the dual representation and the adoptive parent’s purported consent does not require a different determination. The adoptive parent may not have the sophistication to navigate the child welfare bureaucracy or appreciate the intricacies of court practice or the pos*117sibility that conflicts may arise even among parties who share the same objective. Thus, the Family Court must act to ensure that independent legal representation is provided so that the best interests of the child are served. Moreover, regardless of the consent of the proposed adoptive parent, the best interests of the child are paramount.
In this context, the majority overlooks the applicability of DR 9-101 (b) (1) (22 NYCRR 1200.45 [b] [1]) to this matter. DR 9-101 provides in relevant part:
“(b) Except as law may otherwise expressly permit:
“(1) A lawyer shall not represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, and no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter unless:
“(i) The disqualified lawyer is effectively screened from any participation, direct or indirect, including discussion, in the matter and is apportioned no part of the fee therefrom; and
“(ii) there are no other circumstances in the particular representation that create an appearance of impropriety.”
In Ethics Opinion 708, the Ethics Committee analyzed the distinction between ethical rules relating to the protection of client confidences and those intended to ensure public confidence in the judicial process:
“Under DR 5-108 (A), a lawyer is generally forbidden from representing a new client against a former client in a matter that is the same or substantially related to the prior representation. However, DR 5-108 (A) permits the successive representation ‘with the consent of [the] former client after full disclosure.’ The different approaches to client consent reflect the different purposes of these rules: DR 9-101 (B) is principally intended to ensure the public’s confidence in the integrity of public agencies and public processes, whereas DR 5-108 (A) is principally intended to protect against the misuse of the former client’s confidences. Generally speaking, *118conflict-of-interest rules have been more restrictive in contexts, such as those addressed by DR 9-101 (B), that specifically implicate the public interest.”
Thus, “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]).
While it is true that the foster care agency is a private agency and that Warren & Warren is not a public employee, it acted substantially as a public officer. When the foster care agency took custody of Gustavo, brought judicial proceedings to free him for adoption, undertook statutorily assigned responsibilities as his legal guardian, and endeavored to facilitate his adoption, it was exercising the public trust and employing powers usually reserved for public bodies, acting as the functional equivalent of an “authorized” agency itself within the meaning of Social Services Law § 371 (10), bringing its counsel within the ambit of DR 9-101 (b) (see Matter of A., supra; Ethics Op 708, supra). As the Committee on Professional Ethics observed (quoting NY St Bar Assn Comm on Prof Ethics Op 534 [1981]):
“DR 9-101 (B) should be seen as providing an illustration of a general policy underlying much of Canon 9 [of the Code of Professional Responsibility]. It is a policy which may be seen to develop from the Code’s expressed purpose to promote public confidence in our system of justice and the various mechanisms, or agencies, which have been created to serve that system. Where the public might reasonably perceive that such agencies are being used for the personal advantage of [its] attorneys, consistent with the broad purposes of Canon 9, the attorneys have been prohibited from undertaking various kinds of private employment.”
Indeed, in determining who qualifies as a public employee, courts generally have relied more on policy considerations than on formalistic definitions (see Handelman v Weiss, 368 F Supp 258, 262-264 [1973] [former attorney for the Securities Investor Protection Corporation was a public employee for the purposes of DR 9-101 (b)]; Flego v Philips, Appel & Walden, Inc., 514 F Supp 1178 [1981] [compliance attorney for American Stock Exchange is a “public employee”]). Thus, the Code imposes an equivalent restriction in cases in which the concerns underlying DR 9-101 (b) (1) are implicated and as the Committee on Professional Ethics found:
*119“under DR 9-101 (B) (1) and Canon 9 of the Code, it would also be impermissible for a lawyer to represent a foster care agency in termination of parental rights proceedings or extra-judicial surrender proceedings, to end the representation, and then to begin representing the prospective adoptive parents. Compare N.Y. State 514 (1979) (a lawyer who served as guardian ad litem in a conservatorship proceeding may not, a few days after the conclusion of the proceeding, accept employment as counsel for the conservator).”
Warren & Warren’s simultaneous representation of the foster care agency in other termination of parental rights proceedings is equally troubling. It can support the perception that counsel, knowing that a large part of its business flows from the termination proceedings it brings on behalf of the foster care agency, may defer to the agency’s judgment, rather than that of the adoptive parents or the best interests of the child. Similarly, the successive representation of the adoptive parent in the adoption proceeding can support the perception that counsel may have acted for private advantage in the termination proceeding, advocating for the termination of parental rights, regardless of whether it was in the child’s best interests, in order to generate additional business in the subsequent adoption proceeding (see Matter of A., supra). To permit successive and dual representation under the circumstances creates the potential for such abuse and supports the public perception that foster care agencies are being used for the personal advantage of their attorneys. This will lead to the erosion of public confidence in our judicial system.
The fact that the attorney may end the relationship with the petitioner if a conflict of interest arises does not require otherwise. As the Family Court observed in Matter of Vincent (158 Misc 2d at 946), “[t]hat is not enough. Although the attorney may feel covered, the petitioner [client] is not.” Again, the adoptive parent may not appreciate the intricacies of the judicial process relating to adoptions or that a conflict has arisen and should not be placed in a position where he or she must blindly rely on the attorney’s determination as to whether a conflict is significant enough to warrant disqualification.
The majority also finds that the amendment of Social Services Law § 374 (6) sets forth the type of unacceptable dual representation in adoption proceedings and that if the Legislature *120found that dual representation by an attorney of the foster care agency and prospective adoptive parent presented a conflict or was inconsistent with ethical principles, it would have taken action at that time by precluding such representation as well as the dual representation of the natural and adoptive parents. However, the proviso that “[n]o attorney or law firm shall serve as the attorney for, or provide any legal services to both the natural parents and adoptive parents” was approved and effective July 10, 1989 (see L 1989, ch 315, § 1). Thus, the language on which the majority relies for its preclusion argument was already in Social Services Law § 374 (6) when Matter of Vincent (supra) was decided and when Ethics Opinion 708 was issued. It was also in existence when Matter of A. (supra) was decided. Ergo, the Committee on Professional Ethics in issuing Ethics Opinion 708 and the Vincent and A. courts, in rendering their decisions, found that section 374 (6), with the above-quoted language already in place, did not preclude the prohibition of other types of dual representation concerning Family Court proceedings which can lead to a potential conflict of interest and undermine public confidence in our judicial system.
Furthermore, in passing the July 10, 1989 amendment to Social Services Law § 374 (6), the Legislature recognized that dual representation of both the natural mother and adoptive parent was “deemed by the sponsor to be contrary to the integrity of the adoption process and the best interests of the child to be adopted” (see 1989 NY Legis Ann, at 167). As detailed above, dual representation of both the foster care agency and the adoptive parent raises the same concerns and is violative of the very same ethical principles.
Citing Solow v W.R. Grace & Co. (83 NY2d 303, 310 [1994]), the majority also states that the Family Court improperly applied a per se disqualification rule. In Solow, the plaintiff was represented by Stroock & Stroock & Lavan (Stroock) to recover damages for asbestos contamination. Stroock had represented defendant in a prior asbestos contamination case. The Stroock attorney who had previously represented defendant had left the firm well before Stroock was retained by plaintiff. The Court of Appeals held that under these circumstances, the strict enforcement of the irrebuttable presumption of disqualification gave too much weight to the ethical obligation to avoid an appearance of impropriety and unduly impaired related policy objectives involving the right of litigants to select counsel of their choice and favoring the mobility of attorneys (Solow v Grace, 83 NY2d at 313).
*121In reaching this determination, the Court of Appeals found that the per se rule of disqualification was unnecessarily preclusive because it disqualified members of a law firm indiscriminately, whether or not they shared knowledge of a former client’s confidences and secrets, leading to the frequent use of motions to disqualify as an offensive tactic (Solow v Grace, 83 NY2d at 310). These concerns are not implicated here, where the preservation of client confidences is not the focal point. The concern in this case is that the dual representation creates an inherent conflict of interest in that the attorney may be perceived or may actually be acting for his or her private advantage instead of advocating for the best interests of the child, leading to the erosion of public confidence in the integrity of our court system and the adoption process. The nuances of a Family Court proceeding where the best interests of the child are the primary concern dictate a different result in the instant case than the determination in Solow.
Thus, I would affirm in that the Family Court correctly held that the circumstances herein create an appearance of impropriety and a potential for conflict of interest requiring the law firm’s disqualification regardless of the absence of actual conflict between petitioner and the foster care agency, and petitioner’s purported awareness of the potential for conflict.
Buckley, P.J., and Marlow, J., concur with Sullivan, J.; Marlow, J., also concurs in a separate opinion; Tom, J., dissents in a separate opinion.
Order, Family Court, Bronx County (Sidney Gribetz, J.), entered on or about April 3, 2003, reversed, on the law, without costs or disbursements, the adoption petition reinstated and the matter remanded to Family Court with the direction to calendar the matter promptly for the completion of the adoption.