Can a criminal-defense lawyer furnish his wife as surety on his clients' appearance bonds, in effect acting as a bond broker?

Plain-English summary

A county attorney reported that a defense lawyer had appeared before the court clerk with appearance bonds for a client charged with auto larceny, using the lawyer's wife as the principal surety on whose signature and property the clerk relied, and that the lawyer had done this on many occasions and had obtained over $100 in connection with the bond or as a partial fee. The county attorney asked whether the bar could act on this conduct.

The Board of Governors disapproved of the conduct as a violation of Rule 31, which requires a member of the bar to uphold the honor and maintain the dignity of the profession; a breach is punishable under Section 29 of the State Bar Act by suspension up to one year. The Board observed that if the wife signed the bonds as the attorney's alter ego, the conduct fell within the prohibitory spirit of Section 4110, C.O.S. 1921, which bars licensed attorneys from signing bonds as surety in cases in which they are employed and makes such bonds void. The Board added that whether or not the lawyer took compensation as a bond broker, combining a lay bond-brokerage business with the practice of law is disapproved: without compensation it is too susceptible of construction as solicitation of legal business, and with compensation it tends to lower the dignity of the profession by using the law practice to get bond business or the bond business to get legal business. It cited the New York County Lawyers Association's answer to its Question 114 to the same effect.

Currency note

This opinion was issued in 1932, 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. The rule and statute cited here, Rule 31 and Section 4110 of C.O.S. 1921, belong to that era and may have been renumbered, amended, or superseded. Treat this page as historical context, not current guidance. Verify against current rules and statutes before relying on any specific provision mentioned here.

Common questions

Q: Could a lawyer use his wife as bail surety for his own clients in 1932?

A: The Board disapproved. It treated the wife as the lawyer's alter ego, bringing the practice within the spirit of the statute barring attorneys from signing bonds in their own cases, and found it lowered the dignity of the profession.

Q: Did it matter whether the lawyer was paid as a bond broker?

A: The Board disapproved either way. Without compensation the practice looked like solicitation of legal business; with compensation it improperly used the law practice and the bond business to feed each other.

Q: Could a lawyer run a separate lay business at all?

A: The opinion, citing the New York County Lawyers Association, noted a lawyer is not barred from a lay business but must conduct it by a lawyer's standards and may not use it to obtain law business or use his bar membership to obtain lay business.

Background and rules framework

The opinion applied Rule 31 of the then-current Oklahoma Rules of Professional Conduct, requiring lawyers to uphold the dignity of the profession, together with Section 4110, C.O.S. 1921, which prohibits attorneys from signing bonds as surety in cases in which they are employed. The Board treated furnishing the wife as surety as the attorney's own act in spirit, and treated the bond-brokerage business as a lay business that must not be used to procure legal work. It relied on the New York County Lawyers Association's Question 114. These rules were patterned on the ABA Canons of Professional Ethics in force at the time.

Citations and references

Rules of Professional Conduct:

• Rule 31 (1929 Oklahoma Rules of Professional Conduct): a lawyer should uphold the honor and maintain the dignity of the profession.

Statutes:

• Section 4110, C.O.S. 1921 (5 Okl. St. Ann. § 11): attorneys are prohibited from signing bonds as surety in cases in which they are employed; such bonds are void.
• State Bar Act, Section 29: breach of a rule is punishable by suspension up to one year.

Other opinions cited:

• New York County Lawyers Association, Question 114: a lawyer's lay business must be conducted by a lawyer's standards and not used to obtain law business.

See also

• Okla. Bar Ethics Op. 31: Law Firm Operating a Lay Claims-Adjustment Bureau
• Okla. Bar Ethics Op. 5: Runners, Touters, and Association With a Loan Shark
• Okla. Bar Ethics Op. 35: Newspaper Card Touting "Fair Treatment"

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-36/

Original opinion text

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

October 28, 1932

1. Attorneys – Unprofessional Conduct – Bond Brokerage.

The practice of a member of the bar of furnishing his wife as a surety on appearance bonds of his clients charged with crime, condemned.

Opinion

The Board of Governors is in receipt of the following letter from one of the county attorneys of the State:

"One ………. stands charged in the District Court of ………. County, Oklahoma, in two cases Nos. …. and …. with the crime of larceny of an automobile in each case. One ………., an attorney at ….. appears as attorney of record for this defendant.

On September 15, 1932, the attorney appeared before the Court Clerk with Appearance Bonds in each of these cases with a surety by the name of ………., his wife, and procured this defendant's release, his wife being the principal surety and on whose signature and property the clerk relied upon in approving the bonds. It appears from the letters of recommendation from the Court Clerk, County Clerk, and County Attorney of ………. County that accompanied the bonds that this attorney and surety has done this on many occasions. I am sure that it can also be established by the jailor of the County that this attorney obtained over $100.00 either for making this bond on this same date or as a partial attorney fee.

Will you please inform me if this attorney can be handled by the bar commission or if this transaction will meet with approval with the bar commission under its rules and regulations?

These facts will show of record in the numbered cases above in this Court. It just occurred to me that this procedure was not quite ethical for this attorney and I desired that your commission be informed of these facts to take such action as the rules and regulations of the Bar Commission deemed advisable and legal."

The conduct of the member of the bar in question is disapproved of as in violation of Rule of Professional Conduct No. 31, which provides that a member of the bar "should strive at all times to uphold the honor and to maintain the dignity of the profession." The State Bar Act (Sec. 29) provides that a breach of a rule of professional conduct shall be punished by suspension from the practice of law for a period not to exceed one year.

If his wife, in signing the bonds in question, is acting as the attorney's alter ego, the attorney's conduct in the premises is within the prohibitory spirit of Section 4110, C.O.S.1921, 5 Okl.St.Ann. § 11 which provides:

"Licensed attorneys of this State are prohibited from signing any bonds as surety in any * * * criminal case in which they may be employed as counselors * * * All such bonds shall be absolutely void, and no penalty can be recovered of the attorney signing the same."

A lawyer's conduct should conform with ideals which are measured by higher standards than merely that his conduct does not come within the narrow letter of law.

If the member of the bar is engaged in the lay business of obtaining bonds signed by his wife as a bond broker, without compensation as a bond broker, his conduct cannot be approved because it is too susceptible of construction as a form of solicitation of legal business. If he is engaged in the lay business of furnishing bonds for his clients, signed by his wife, for compensation as a bond broker, his conduct is disapproved as having a tendency to lower the dignity of the profession in that he combines his lay business with his law practice in such a way as to obtain business as bond broker because he is a lawyer, or to obtain business as a lawyer because he is engaged in the lay business of furnishing bonds signed by his wife. This sort of combination of lay business with the practice of law has been condemned by the Committee of Professional Ethics of the New York County Lawyers Association in answer to question 114, wherein it held that, though a lawyer is not prohibited by any accepted standards from engaging in a lay business while practicing law, he must conduct such lay business with due observance of the standards of conduct required of him as a lawyer; and that in conducting such lay business, he must not use it as a means of obtaining law business, nor must he use the fact that he is a member of the bar as a means to obtain lay business.

Note to Opinion 36. Cited with approval in Opinion 67.