Can a lawyer post bail for a client who is in custody?

Plain-English summary

The Committee was asked under what circumstances, if any, a lawyer may post bail for a client in custody. It concludes that under rare circumstances a lawyer may do so, though the practice is discouraged.

The opinion identifies the rules in tension. A lawyer generally may not provide financial assistance to a client in connection with litigation (Rule 1.8(e)), may not acquire a proprietary interest in the subject of litigation (Rule 1.8(a)), and may not represent a client where the representation is adverse to the lawyer's personal interest (Rule 1.7(a)(2)). Each has exceptions: a lawyer may advance court costs and expenses under Rule 1.8(e), and may proceed despite a personal-interest conflict under Rule 1.7(b) if the lawyer reasonably believes the representation will be competent and diligent and the client gives informed consent. Posting bail, the opinion notes, does not fit squarely within the costs-of-litigation exception or the concurrent-conflict analysis; some jurisdictions treat bail as a litigation cost while the ABA applies a conflict analysis.

Drawing from both exceptions, the opinion concludes a lawyer may post bail where the amount is insignificant enough not to create a material limitation on the representation, and only after obtaining the client's written informed consent specifying the surety provided and the scope of the liability the bail agreement imposes. The opinion reasons that limiting the practice to rare cases and to amounts unlikely to materially limit the lawyer minimizes the risk that the lawyer's financial exposure, or the client's potential noncompliance with release conditions, would compromise competent and diligent representation. It does not address a lawyer posting bail in a personal capacity unconnected to a representation.

In practice

Under this opinion, as the Alaska rules stood at the time, posting bail for a client is discouraged and permissible only in rare circumstances: the bail amount must be small enough not to materially limit the lawyer's ability to represent the client, and the lawyer must first obtain the client's written informed consent under Rule 1.7(b)(4) that specifies the surety and the scope of the lawyer's liability. The opinion frames the limits (rare cases, insignificant amounts) as the conditions that keep the lawyer's financial exposure and the client's possible noncompliance from impairing the representation.

Common questions

Q: Can a lawyer post bail for a client in Alaska?

A: Only rarely. The opinion concludes a lawyer may post bail where the amount is small enough not to materially limit the representation and the client gives written informed consent, but it discourages the practice.

Q: Which rules does posting bail implicate?

A: The opinion points to Rule 1.8(e) (financial assistance to a client), Rule 1.8(a) (proprietary interest), and Rule 1.7(a)(2) (personal-interest conflict), noting bail fits neatly within none of them but that their exceptions provide guidance.

Q: What does the lawyer need from the client first?

A: Per the opinion, written informed consent under Rule 1.7(b)(4) that specifies the surety provided and the scope of the liability the bail agreement imposes on the lawyer.

Q: Why limit it to small amounts and rare cases?

A: The opinion reasons that small amounts and rare use minimize the risk that the lawyer's financial obligation, or the client's failure to comply with release conditions, would materially limit competent and diligent representation.

Background and rules framework

The opinion interprets Alaska Rules of Professional Conduct 1.8(e) (financial assistance in litigation, analog of Model Rule 1.8(e)), 1.8(a) (business transactions and adverse interests), and 1.7 (conflicts of interest), drawing on the exceptions in 1.8(e)(1)-(2) and 1.7(b). It references ABA Formal Opinion 04-432, which applies a concurrent-conflict analysis, and an Oregon opinion treating bail as a litigation cost.

Citations and references

Rules of Professional Conduct:

• Alaska RPC 1.8(e), 1.8(e)(1)-(2), 1.8(a) (financial assistance; proprietary interest)
• Alaska RPC 1.7(a)(2), 1.7(b), 1.7(b)(4) (conflicts; informed consent)

Other opinions cited:

• ABA Formal Opinion 04-432: posting bail for a client (conflict analysis)
• Oregon State Bar Op. 1991-4 (bail as a litigation cost)

See also

• ABA Formal Op. 04-432: Posting Bail for a Client
• OSB Ethics Op. 2005-4: Advancing Living Expenses, Bail, and Travel

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/2015-1.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

ALASKA BAR ASSOCIATION
ETHICS OPINION 2015-1
May a Lawyer Post Bail for a Client?
Question Presented:
Under what circumstances, if any, may a lawyer post bail for a client?
Conclusion:
Under rare circumstances a lawyer may post bail for a client, though the practice is
discouraged.
Discussion:
An attorney asks whether it is ethically permissible to post bail for a client1 who is
in custody.
Posting bail for a client raises several issues under the Alaska Rules of Professional
Conduct, which help ensure that a lawyer can zealously represent a client without
conflicting interests that could affect the quality of the representation. The Rules provide,
for example, that a lawyer may not provide financial assistance to a client in connection
with litigation2 or acquire a proprietary interest in the subject matter of litigation.3 Neither
may a lawyer represent a client if the representation is adverse to a personal interest of the
lawyer. 4
Each of these prohibitions, however, has exceptions. So, while a lawyer is generally
prohibited from providing financial assistance to a client in connection with pending or
contemplated litigation, a lawyer may advance court costs and expenses.5 And if a lawyer
believes that he or she will be able to provide competent and diligent representation to a
client despite their adverse interests, the lawyer may proceed with that representation after
obtaining informed consent from the client. 6
Posting bail for a client imposes on the lawyer both contractual and financial
constraints which could give rise to a situation in which the lawyer’s interests are materially
1

This opinion does not address the ethical obligations of an attorney who is asked to post bail in a personal
capacity unrelated to any existing or prospective client-lawyer relationship.

Rule 1.8(e) (“A lawyer shall not provide financial assistance to a client in connection with pending or
contemplated litigation . . .”)
2

Rule 1.8(a) (“A lawyer shall not enter into a business transaction with a client or knowingly acquire an
ownership, possessory, security, or other pecuniary interest adverse to a client . . . ”
3

4

Rule 1.7(a)(2).

5

Rule 1.8(e)(1)-(2).

6

Rule 1.7 (b).

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adverse to the client’s, particularly if the client fails to comply with his or her conditions
of release. Despite these ethical implications, posting bail does not fit squarely within the
“costs of litigation” exception contemplated by Rule 1.8(e) nor the concurrent conflict of
interest analysis contemplated by Rule 1.7(a)(2). Some jurisdictions interpret bail as akin
to a cost of litigation, 7 while the American Bar Association applies a concurrent conflict
of interest analysis. 8 While the Rules do not expressly address bail, they do provide
analytical guidance.
Rule 1.7(b) contemplates limited exceptions to a concurrent conflict of interest
where a lawyer’s ability to zealously represent the client’s interest is not compromised and
the client consents. Rule 1.8(e) anticipates that a lawyer may pay for certain, limited
expenses on a client’s behalf within the scope of the representation. Drawing from these
exceptions, a lawyer may post bail for a client where the amount of bail is insignificant
enough to not create a material limitation on the lawyer’s ability to represent the client. To
ensure that a client understands the unique relationship that is created when the lawyer
posts bail, a lawyer must obtain written informed consent from the client, specifying the
surety provided and the scope of the liability the bail agreement imposes on the lawyer.9
These considerations allow lawyers to facilitate the occasional client’s return to the
community, which may assist with the representation. By limiting the acceptable
circumstances to rare events, lawyers will avoid facing any significant risk that their ability
to provide legal representation will be materially limited by the financial obligations
posting bail requires. Similarly, by limiting the amount of bail to sums unlikely to
materially limit a lawyer’s ability to represent a client, a lawyer diminishes the risk that the
client’s noncompliance with the conditions of release would affect his or her ability to
provide competent and diligent ongoing representation.
Approved by the Alaska Bar Association Ethics Committee on May 7, 2015.
Adopted by the Board of Governors on May 12, 2015.

7

See Oregon State Bar Op. 1991-4, 1991 WL 279145 (July 1991).

8

ABA Formal Opinion 04-432, citing Model Rule of Professional Conduct 1.7(a)(2)).

9

Rule 1.7(b)(4).

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