Can a criminal defense lawyer post bail, or arrange a bond, for their own client?

Plain-English summary

The opinion considers a lawyer who advances money or pledges assets, directly or through a bail bond company, to secure the release of a client whom the lawyer represents in the matter for which the client is detained. Under Rule 1.7, a lawyer may not represent a client where a personal interest of the lawyer creates a significant risk that the representation will be materially limited. The committee reasons that a lawyer who puts substantial funds or assets at risk has a personal interest in the client appearing in court so the lawyer does not forfeit them, and that this interest will usually create a significant risk of material limitation, so the lawyer would in most cases be barred from continuing under Rule 1.7(a).

Although Rule 1.7(b) lets a conflicted representation continue with informed consent confirmed in writing, the committee finds consent will rarely be effective here. It explains that "the stress and anxiety of confinement and the other pressures and conditions affecting the incarcerated client make it highly unlikely that the client's acquiescence in the conflict, even if obtained, will qualify as sufficiently genuine and voluntary in nature so as to constitute the sort of 'informed consent' contemplated by Rule 1.7(b)." The committee identifies narrow exceptions where there is no significant risk of material limitation: the amount is negligible to the lawyer, the lawyer expects indemnification (for example from the client's family) or commits not to pursue recourse against the client, or the lawyer reasonably believes there is little or no risk the client will fail to appear, as with civil rights lawyers who post bond when no one else will.

The committee also addresses Rule 1.8(e), which bars providing financial assistance to a client in connection with litigation except for court costs and litigation expenses. It declines to treat bail as categorically outside that exception, reasoning that securing a defendant's release may be a tactical objective so the cost of bail can legitimately be viewed as a cost of litigation. The committee concludes there is no per se bar under either rule, but cautions that "other than in relatively unusual circumstances, the lawyer should conclude that taking such action would be improper."

In practice

Under this opinion, and under the Model Rules as they stood at the time, the controlling question is whether the lawyer's financial exposure creates a significant risk of materially limiting the representation under Rule 1.7. The opinion treats the answer as usually yes once the amount is consequential to the lawyer, and treats client consent as usually ineffective given the coercive conditions of detention. It carves out narrow situations (a trivial amount, an indemnity or waiver of recourse, or near-certain appearance) where the lawyer may reasonably conclude there is no material-limitation risk. On Rule 1.8(e), the opinion declines a categorical rule, allowing bail to count as a litigation expense where release is a tactical objective.

Common questions

Q: Is it flatly prohibited for me to post my client's bail?

A: No. The opinion concludes there is no per se prohibition under either Rule 1.7 or Rule 1.8(e), but it treats the conduct as improper in all but unusual circumstances.

Q: Why would posting bail create a conflict at all?

A: Because the lawyer then has a personal stake in the client appearing in court. The opinion finds that, unless the amount is inconsequential, this personal interest creates a significant risk of materially limiting the lawyer's independent judgment under Rule 1.7(a).

Q: Can I just get the client's written consent and proceed?

A: Rarely. The opinion concludes the pressures of confinement make it "highly unlikely" the detained client's consent will be sufficiently genuine and voluntary to qualify as informed consent under Rule 1.7(b).

Q: When would posting bail actually be permissible?

A: In narrow cases the opinion identifies: the amount is negligible to the lawyer, the lawyer is indemnified or waives recourse against the client, or the lawyer reasonably believes there is little or no risk the client will fail to appear.

Background and rules framework

The opinion interprets Model Rule 1.7(a)(2) and 1.7(b) (personal-interest conflicts and the conditions for proceeding by informed consent confirmed in writing), Model Rule 1.8(e) (financial assistance to a client in litigation, limited to court costs and litigation expenses), and references Rule 7.3(b)(2) (solicitation by promising to secure release). It is based on the Model Rules as amended by the ABA House of Delegates in August 2003.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.7(a)(2), 1.7(b) (personal-interest conflict; consent conditions)
• ABA Model Rule 1.8(e) (financial assistance to clients; court costs and litigation expenses)
• ABA Model Rule 7.3(b)(2) (solicitation by promise to secure release)

Statutes:

• Wis. Stat. Ann. § 757.34, barring a practicing attorney from acting as bail or surety

Other opinions cited:

• N.Y. State Bar Op. 647 (1993): a lawyer may act as bail bond agent for a nonclient but not for a client
• Pennsylvania State Bar Op. 2000-14 (2000): bond amounts required by statute can fall within "court costs and expenses of litigation"

See also

• ABA Formal Op. 494: Conflicts From a Personal Relationship With Opposing Counsel
• ABA Formal Op. 497: Conflicts Involving Materially Adverse Interests
• Florida Bar Op. 70-8: Lawyer Indemnifying a Surety on a Client's Bond
• RI EAP Op. 2012-08: Rule 1.8(e) Permits a Lawyer to Pay an Indigent Out-of-State Client's Transportation Costs to Attend Court Hearings, Regardless of Repayment

Source

• Landing page: ABA Formal Ethics Opinions index
• Original PDF: 04-432.pdf