Does an attorney signing a court's 'Recognizance Release' form to get a misdemeanor client out of jail violate the statute barring attorneys from signing bonds as surety?

Plain-English summary

A District Court had ordered that a person charged with a misdemeanor could be released on his own recognizance to any attorney in good standing who executes a prescribed "Recognizance Release" form. The form is an application by the attorney to release the named defendant into the attorney's custody for all necessary court appearances, with the attorney agreeing that if the defendant fails to appear, the attorney will immediately cause his appearance or post an appearance bond in the sum the court requires, and acknowledging that failure to do so removes the attorney from the list of those with recognizance privileges. The inquiry suggested this might violate 5 O.S. 1971 Section 11, which prohibits licensed attorneys (and certain others) from signing bonds as surety in any civil or criminal action.

The committee concluded that executing the form would not be signing a bond as surety within the statute. It viewed the procedure as a courtesy extended by the judiciary to licensed practitioners in good standing to secure the release of misdemeanor clients, beneficial to both attorney and client, conditioned on the attorney either causing the defendant's appearance or causing an appearance bond to be posted, with loss of the privilege as the consequence of breach. It read the form as an assurance to the court based on the attorney's personal integrity. Unless a court were to hold that signing such a form makes the attorney a surety under the statute, the committee's view was that the statute is not violated and no unethical activity is involved simply by agreeing to the form's terms.

The committee added that it would be unethical for an attorney to procure a defendant's release under this or any OR procedure unless the attorney in good faith, and with a reasonable basis for the belief, believes the client will present himself to the court as required. It noted that a lawyer should not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation, nor in conduct prejudicial to the administration of justice, citing Disciplinary Rule 1-102(A)(4) and (5).

Currency note

This opinion was issued in 1973, under the Code of Professional Responsibility, before Oklahoma adopted the Oklahoma Rules of Professional Conduct (1988) and the later Ethics 2000 revisions, and it construes a statute (5 O.S. 1971 Section 11) that may since have changed. 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: Is signing the court's recognizance release form the same as acting as a surety on a bond?

A: No. The committee concluded the form is not a bond signed as surety within 5 O.S. 1971 Section 11, but an assurance to the court based on the attorney's personal integrity, unless a court holds otherwise.

Q: When is it improper to use the recognizance release procedure?

A: The committee said it would be unethical to procure a client's release unless the attorney in good faith, and on a reasonable basis, believes the client will appear in court as required.

Q: What conduct rule did the committee invoke?

A: It cited DR 1-102(A)(4) and (5), that a lawyer should not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation, or conduct prejudicial to the administration of justice.

Background and rules framework

The opinion construed 5 O.S. 1971 Section 11 (barring licensed attorneys from signing bonds as surety) against the District Court's recognizance release procedure, and invoked Disciplinary Rule 1-102(A)(4) and (5) of the Code of Professional Responsibility on dishonesty and conduct prejudicial to the administration of justice. The opinion predates the Model Rules and made no Model Rule citation.

Citations and references

Rules of Professional Conduct:

• DR 1-102(A)(4) (Code of Professional Responsibility): a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
• DR 1-102(A)(5) (Code of Professional Responsibility): a lawyer shall not engage in conduct prejudicial to the administration of justice.

Statutes:

• 5 O.S. 1971, Section 11: prohibits licensed attorneys, their spouses, and certain others from signing bonds as surety in any civil or criminal action.

See also

• Okla. Bar Ethics Op. 270: Own-recognizance release and unauthorized pleas
• Okla. Bar Ethics Op. 234: Withholding a divorce decree until the fee is paid
• Okla. Bar Ethics Op. 266: Representing the executrix and the legatee in a will contest

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-271/

Original opinion text

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

Adopted January 23, 1973

INQUIRY

A practicing attorney has requested an opinion concerning the ethical propriety of an attorney complying with the requirements and conditions of an order of a District Court which prescribes the manner in which one charged with a misdemeanor may be released to his attorney on his own recognizance. The District Court, by order, has provided that one charged with a misdemeanor may be released on his recognizance to any attorney who is a member in good standing of the Oklahoma Bar Association after such attorney executes a prescribed form.

The form prescribed is denominated "Recognizance Release". In substance, it is an application by the attorney requesting the release of the named defendant from the county jail on the defendant's recognizance and in the attorney's custody to appear for all necessary appearances in the District Court at a specified time and date. The form contains an agreement on the part of the attorney that if the defendant fails to appear at such time and place, the attorney will immediately cause his appearance or cause there to be posted an appearance bond for and on behalf of the defendant in such sum as the Court shall require. It further contains an acknowledgement on behalf of the attorney that in the event of the failure of the defendant to appear or to post such bond, the attorney will be removed from the list of attorneys with recognizance privileges by the Court.

The inquiry suggests that an attorney complying with this procedure would violate 5 O. S.1971, Section 11 which prohibits licensed attorneys, their spouses and certain others from "signing bonds as surety in any civil or criminal action …"

OPINION

In the opinion of the Committee, an attorney executing the "Recognizance Release" form submitted with the inquiry would not be executing or signing a bond as surety, within the contemplation of the statute. We view the procedure prescribed by the Court as a courtesy extended by the judiciary to licensed practitioners in good standing to procure the release of clients charged with misdemeanors if the attorney is willing either to cause the defendant's appearance or cause there to be posted an appearance bond for the defendant in such sum as the Court shall require. The privilege accorded is beneficial to both attorney and his client. The Court has attached to this privilege a condition that if the attorney who procures the release of a defendant breaches the conditions on which the release was procured, the attorney will no longer be accorded the recognizance release privileges in that Court.

We view the terms of the "Recognizance Release" form as an assurance by the attorney to the Court based upon the personal integrity of the attorney.

Unless a Court holds that the signing by an attorney of such a Recognizance Release form does constitute the attorney as a surety within the meaning of the statute, it is the view of this Committee that the statute is not violated and, accordingly, no unethical activity is involved by the attorney simply by agreeing to the terms and conditions in the form.

The Committee believes that it would be unethical for an attorney to procure the release of a defendant under this or any other "OR" procedure unless the attorney in good faith believes, and with reasonable basis for his belief, that his client will present himself to the Court at such times as may be required. A lawyer should not engage in conduct involving dishonesty, fraud, deceit or misrepresentation; nor should he engage in conduct that is prejudicial to the administration of justice. Code of Professional Responsibility DR 1_102(A)(4)(5).