May a lawyer have his wife post a client's bond, take a fee for referring clients to a bondsman, or run property through a bondsman to leave a bond insecure?

Plain-English summary

The committee answered three questions about lawyers and bail bonds. On the first, whether a lawyer who is by law prohibited from posting his client's bond may allow his wife to post it, the committee said that if the wife acts as the attorney's agent, or if he has any interest, direct or indirect, in the fees received from the bonds, it is unethical, because he cannot do indirectly what he cannot do directly.

On the second, whether a lawyer may accept a fee for referring clients to a bondsman, the committee construed Canon 38 (a lawyer should accept no compensation, commissions, rebates, or other advantages from others without the client's knowledge and consent after full disclosure) and Canon 6 (it is unprofessional to represent conflicting interests except by express consent after full disclosure, and a lawyer represents conflicting interests when, for one client, his duty requires him to contend for what duty to another requires him to oppose). Even with full disclosure to the client, the committee said, the lawyer would be serving two masters, a position he should avoid, so accepting a referral fee from a bondsman is unethical.

On the third, the property-transfer scheme, the committee said the answer was obvious: the arrangement, transferring property to a bondsman, having the bondsman post bond on it, and then transferring it back to leave the bond insecure, would constitute acts of fraud on the court, so a lawyer engaging in it is guilty of unethical conduct. In summation, the committee concluded that the Question 3 practice is unethical because it is unlawful, and that while the practices in Questions 1 and 2 could technically be brought within the letter of the law and the Canons, they are so fraught with the possibility and appearance of improper conduct that participation in either should be prohibited.

Currency note

This opinion was issued in 1965, decades before Oklahoma replaced its original Rules of Professional Conduct (patterned on the ABA Canons of Professional Ethics) with the Oklahoma Rules of Professional Conduct (adopted 1988) and the later Ethics 2000 revisions. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could a lawyer have his wife post a client's bond when he is barred from doing so himself?

A: Not if she acts as his agent or he shares, directly or indirectly, in the bond fees. The committee said he cannot do indirectly what he cannot do directly, and that the practice should be prohibited as fraught with the appearance of impropriety.

Q: Could a lawyer accept a referral fee from a bondsman, even with full client disclosure?

A: No. The committee held it unethical under Canons 6 and 38, reasoning that even with disclosure the lawyer would be serving two masters, a position he should seek to avoid.

Q: What about transferring property to a bondsman and then taking it back to leave the bond insecure?

A: The committee said that scheme would be a fraud on the court, unethical because it is unlawful.

Background and rules framework

The opinion applied Canon 6 of the Canons of Professional Ethics, adopted in Oklahoma (the bar on representing conflicting interests), and Canon 38 (no undisclosed compensation, commissions, or rebates from others), to a lawyer's financial dealings with bail bondsmen. It treated the property scheme as a fraud on the court. The opinion predates the Model Rules and made no Model Rule citation.

Citations and references

Rules of Professional Conduct:

• Canon 6 (ABA Canons of Professional Ethics, adopted by the Oklahoma Bar): it is unprofessional to represent conflicting interests except by express consent after full disclosure.
• Canon 38 (ABA Canons of Professional Ethics, adopted by the Oklahoma Bar): a lawyer should accept no compensation, commissions, rebates, or other advantages from others without the client's knowledge and consent after full disclosure.

See also

• Okla. Bar Ethics Op. 221: Trade association directing members to a retained attorney
• Okla. Bar Ethics Op. 220: Habitual fee cutting below the minimum fee schedule
• Okla. Bar Ethics Op. 230: Bar association lawyer referral service and advertising

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-229/

Original opinion text

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

Adopted March 18, 1965

INQUIRY

1. Is it ethical for an attorney, who is by law prohibited to post bond for his client, to allow his wife to post bond for his client?

2. Is it ethical for an attorney to accept a fee for referring clients to a bondsman?

3. Is it ethical for an attorney to transfer property to a bondsman, allow the bondsman to post bond on the property, and then transfer it back, leaving the bond insecure?

OPINION

Since there are three questions asked, we will answer then in chronological order.

1. If the wife is acting as the attorney’s agent, or he has any interest in the benefits from the fees received from the bonds, either directly or indirectly, then, of course, it is unethical, since he cannot do indirectly that which he cannot do directly.

2. The second question involves construction of Canon 6 and Canon 38 of the Professional Ethics of the Oklahoma Bar Association as adopted by the Supreme Court of the State of Oklahoma.

Canon 38 states, “A lawyer should accept no compensation, commissions, rebates or other advantages from others without the knowledge and consent of his client after full disclosure.”

Canon 6 states in part, “It is unprofessional to represent conflicting interests, except by express consent of all concerned given after a full disclosure of the facts. Within the meaning of this canon, a lawyer represents conflicting interests when, in behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose.”

Even though the attorney has made full disclosure to his client, he is serving two masters, a position he should seek to avoid. It is, therefore, this Committee’s opinion that the acceptance of a fee from a bondsman for referring a client to the bondsman is unethical.

3. The answer to question three of the Inquiry is obvious and as propounded would constitute acts of fraud on the court. We, therefore, hold that an attorney engaged in such acts as set out in the question is guilty of unethical conduct.

In summation, we conclude that the practice referred to in Question 3 is unethical because it is unlawful; that while the practices referred to in Questions 1 and 2 could technically be brought within the letter of the law and the Canons, they are so fraught with the possibility of and the appearance of improper or unethical conduct that participation in either should be prohibited.