Baby Blues: NY Lawyer Arrested
 in Adoption Scam Mulls Plea Deal

By Vesselin Mitev
New York Law Journal
New York Lawyer
March 24, 2010

A possible plea deal for a Long Island attorney charged with running an adoption scam could land him behind bars for up to 20 years. Roslyn lawyer Kevin Cohen, who was indicted in October on charges that he stole more than $300,000 from couples looking to adopt by promising them children that did not exist, has until April 23 to decide whether to take a plea of 7 1/3 to 22 years, which under statute is capped at 20 years.

According to prosecutors, 13 families, some from New York and others from Georgia, Texas and Ohio, gave money—up to $65,000 in one case—believing it would be held in escrow to pay for medical costs and expenses of fake birth mothers.

Mr. Cohen allegedly perpetuated the scam by using phony sonograms and other documents.

Prosecutors are asking for 10 to 20 years in prison but County Court Judge John Kase of Nassau has agreed to keep the possibility of a lesser sentence open until Mr. Cohen's April 23 court date.

Mr. Cohen, 41, who founded a now-defunct adoption service provider called the Adoption Annex, is being represented by Adam Moser of Rockville Centre, after his former attorney, Matin Emouna, withdrew from the case on Monday.

Charges Against NY Lawyer
Show Gray Areas Of Adoption

By Vesselin Mitev
New York Law Journal
New York Lawyer
November 10, 2009

The couple who turned in a Roslyn lawyer for allegedly masterminding a multi-state adoption Ponzi scheme admitted they ignored numerous red flags along the way. But practitioners say the adoption field itself remains such a legal gray area that it tests the ethical limits of the attorneys who specialize in it.

"We should have been smarter sooner in the process," said Deborah Josephs of Port Washington, who said that she and her husband were duped into giving attorney Kevin Cohen $60,000 for two prospective adoption matches that never materialized. "It was disgusting, an emotional nightmare."

According to a 69-count indictment unsealed last month, Mr. Cohen, who in 2004 founded The Adoption Annex, a now-defunct nonprofit adoption service provider, stole more than $300,000 from couples looking to adopt by promising them children "who did not exist." Mr. Cohen, 41, faces up to 25 years if convicted on the top charge of second-degree grand larceny and is being held on $500,000 bail in a Nassau County hospital prison ward.

It is the emotionally charged nature of the adoption process that makes it essential attorneys maintain an ironclad adherence to ethics and existing laws, said several practitioners.

Under §374 of the Social Services Law, only an approved adoption agency can place children, and §374 (6) provides that "no person may or shall request, accept or receive any compensation or thing of value, directly or indirectly," for placing a child or otherwise arranging an adoption.

"We can't find you a baby. We can tell people how to place ads where the birth mother can contact them, whether it's Penny Savers, or college newspapers. But we can't go and say, 'Oh, I know a girl who's a sophomore at Oneonta and she's pregnant, and she'd be perfect for you,'" said Benjamin Rosin, a partner in Manhattan's Rosin Steinhagen Mendel and member of the American Academy of Adoption Attorneys, which has developed ethical standards for the field.

The law allows for payment of "reasonable and actual legal fees charged for consultation and legal advice, preparation of papers and representation and other legal services" provided in connection with an adoption.

"We want to help our clients as much as possible but we have to walk such a fine line," said Elizabeth S. Falker, a New Rochelle adoption attorney. "You have to be extraordinarily careful. You cannot be paid to make a match between a birth parent and an adoptive parent."

The academy's code of ethics provides that lawyers "shall actively discourage adoption fraud or misrepresentation" and "not possess a financial stake in the success of any adoption in which the member is retained as counsel for any party."

Ms. Falker, who writes frequently on adoption, said that if Mr. Cohen "took a lot of money and promised to make a match," as alleged by Nassau County prosecutors, that would be illegal and unethical.

But she added, regardless of the limits placed on lawyers, clients constantly press their attorneys to find a match.

"Clients ask me all the time…it's so hard to tell them 'no'," Ms. Falker said. "I tell them I will help them with everything I legally can, but I cannot [facilitate an adoption], even if I have a colleague who is representing a birth mother and a client who is looking to adopt."

Warning Signs

According to prosecutors, Mr. Cohen did just that, by holding himself out as a "legal expert" and promising to procure children for 13 families—some from New York, others from Georgia, Texas and Ohio—in exchange for "large sums of money."

Mr. Cohen was also arrested last December in an unrelated pending case involving real estate fraud.

Aaron Britvan, who co-chairs the New York State Bar Association's committee on adoption, said he turned down an offer by Mr. Cohen to sit on the board of directors of The Adoption Annex on a hunch.

"We couldn't prove that he was doing anything wrong, but there was a stench there was something wrong," Mr. Britvan said.

The annex was touted in a 2004 Roslyn News article as "one stop shopping" for adoption services, offering counseling, mentoring and a research center.

"The intent was good but he took advantage of it," said Mr. Britvan, a Woodbury solo practitioner, who never reported Mr. Cohen to authorities because he said he did not have proof of wrongdoing.

"Unfortunately, adoption can be big business and people who want so desperately to have a child are vulnerable. This couple trusted this fellow and they didn't do anything to protect themselves," Mr. Britvan said.

Ms. Josephs, a human resources consultant, said that she and her husband, Milton, a teacher, should have picked up on warning signs but after the "emotional roller-coastering" of unsuccessfully trying to adopt, they were ecstatic at the good news Mr. Cohen gave them at their first meeting in March of this year.

"When we met [Mr. Cohen], he indicated there was a birth mother and a week later he indicated there was another birth mother and actually provided us with some medical documentation," said Ms. Josephs, 44. "That led us to sincerely believe him. Who would make that up?"

According to the indictment, Mr. Cohen went to great lengths to further the scheme, including forging prenatal test results, sonograms and posing as a bank representative.

Ms. Josephs said she should have been more suspicious after Mr. Cohen told her and her husband the births were to take place later than he originally indicated. But while the couple's doubts grew, she said they went along, drawn by Mr. Cohen's magnetic personality and ability to think on his feet.

The couple had set up a room for the baby in their home and had told their 6-year-old daughter to expect a sibling, Ms. Josephs said. In September, she drove to Pennsylvania to attend the birth of one baby but was called back by Mr. Cohen and told not to come to the hospital, since there had been delivery complications.

"The turning point was, when these supposed mothers had both given birth and there were complications with one, and the other may have changed her mind," Ms. Josephs said.

The Josephs hired a private investigator and after discovering Mr. Cohen's "questionable background" involving his real estate arrest, referred the matter to the Nassau district attorney.

"Once we figured it out, it was amazing the light bulb that goes off," Ms. Josephs said. "He took too much of a risk, playing us with two babies."

Mr. Cohen has pleaded not guilty in both cases and has denied all charges through his attorney, Mr. Emouna, of Mineola. Mr. Emouna denied a request to interview his client for this report but has said that Mr. Cohen placed several children successfully in the past and that the charges against him involve civil matters.

The Office of Children and Family Services (OCFS), the agency overseeing interstate adoptions in New York, reviewed the activity of The Adoption Annex when it was founded, but determined that the service was never an "authorized adoption agency" and thus did not require state approval.

"At that time, based on the information received by OCFS on the services and activities of the Adoption Annex, OCFS did not identify that the Adoption Annex was violating New York law," Pat Cantiello, a spokeswoman for the agency, said in an e-mail. She added that the agency did not have further contact with the annex, nor did it receive any complaints about it.

Ms. Cantiello said that penalties for violating the prohibition on placement of babies range from a misdemeanor to a class D felony but there are no statistics on how many of these violations take place. It is up to local prosecutors or the attorney general's office to enforce the law, she said.

Adoption Process

Typically, in a public adoption search, a prospective parent chooses an adoption agency and submits to a criminal background check, which is followed by a series of meetings, interviews and training sessions held to determine whether they are fit to adopt.

The process of matching a child with a parent can begin with the agencies serving as intermediaries, followed by a visitation period that can last months before the child is permitted to move into the home. Usually, a three-month supervision period follows, during which time a caseworker regularly visits the home.

But in a private adoption, practitioners say, there is much less legal oversight and the process often boils down to two private parties coming to an agreement. While interstate adoptions are subject to the Interstate Compact on the Placement of Children, which is administered by OCFS, parents looking to adopt will post ads on the Internet and in local newspapers and circulars, often in other states.

In an ideal private adoption, each side is represented by counsel and common arrangements include the payment of birth-related expenses, including medical bills, counseling, rent and in some cases even the legal fees of the birth mother, Mr. Rosin said.

Mr. Britvan said fraud in the industry is common, as "even birth mothers look to cash in." He added, "Sometimes, you have an alleged birth mother who is not even pregnant and will contact a couple and get money from them."

As an attorney, Mr. Britvan said, "you are there to try and protect the people you represent by evaluating the birth mother situation, you get proof of pregnancy, you get medical reports and try to make an evaluation if the situation sounds secure."

Ms. Josephs said she supports more regulation and oversight of the process but acknowledged that could be difficult, as adoption laws differ by state.

She said her desire to adopt was "dampened" as a result of the alleged fraud and that the couple had little money left to try again.

"There needs to be something done, there needs to be more help for the adoptive parents who are trying to do something good and adopt a child," she said. "At the end of all this, there is still no baby."

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