Can a defense lawyer post bond as surety for his own client in a criminal case?

Plain-English summary

The inquiry asked whether a lawyer representing a defendant in a criminal case may execute the defendant's appearance or appeal bond as surety if the court grants permission.

All members agreed there is no specific provision of the Canons making this a violation. However, because Rule 142 of the Texas Rules of Civil Procedure then provided that "No attorney . . . shall be surety in any cause pending in the Court, except under special leave of Court," the Committee concluded that, even though that rule is one of civil procedure, a lawyer acting as surety on his client's bond in a criminal case violates the spirit of the law and of Texas Canon 24 and should be condemned as unethical unless specifically authorized by the court (9-0). The Committee overruled its Opinion 46 to the extent it conflicts with this conclusion.

Currency note

This opinion was issued in 1957, under the former Texas Canons of Ethics, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. 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 Treat this page as historical context, not current guidance.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: Can a lawyer post bond as surety for his own client in a criminal case?

A: Only with the court's specific leave. The Committee condemned it as unethical unless specifically authorized by the court (9-0).

Q: Was there a canon that directly prohibited it?

A: No. The Committee found no specific canon provision, but relied on the spirit of Canon 24 and of Rule 142 of the Texas Rules of Civil Procedure.

Q: Did this opinion change earlier guidance?

A: Yes. The Committee overruled its Opinion 46 to the extent it conflicts with this opinion.

Background and rules framework

The opinion rests on the spirit of former Texas Canon 24 together with Rule 142 of the Texas Rules of Civil Procedure (barring an attorney from being surety in a pending cause except under special leave of court). The modern analog is ABA Model Rule 1.8 (current-client conflicts arising from a lawyer's financial dealings with or for a client).

Citations and references

Rules of Professional Conduct:

• MR 1.8 (conflicts arising from a lawyer's financial dealings with a client), as the modern analog
• Texas Canon 24 (cited for its spirit)

Statutes and rules:

• Texas Rule of Civil Procedure 142 (no attorney shall be surety in a pending cause except under special leave of court)

Other opinions cited:

• Texas Ethics Opinion 46: overruled to the extent of any conflict

See also

• TX Ethics Op. 142: Lawyer Officing With a Bail Bondsman
• TX Ethics Op. 141: Lawyer in the Bail-Bond Business

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-140/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_140.pdf

Original opinion text

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

QUESTION PRESENTED

Does it violate any of the Canons of Ethics for a lawyer who represents a defendant in a criminal case to execute said defendant's appearance or appeal bond as surety, if given permission of the Court to do so?

18 Baylor L. Rev. 253 (1966)

SOLICITATION - ATTORNEY AS SURETY
An attorney may not act as surety on his client's bond in a criminal case, unless specifically authorized by the Court. Opinion 46 to the extent that it conflicts with this opinion is overruled.

Canon 24.

All members of the committee are of the opinion that there is no specific provision of the Canons of Ethics making this a violation. However, since Rule 142 of the Texas Rules of Civil Procedure now provides:

"No attorney . . . shall be surety in any cause pending in the Court, except under special leave of Court," it is felt, even though the above rule is one of civil procedure, that for an attorney to act as surety on his client's bond in a criminal case violates the spirit of the law and of Texas Canon No. 24 and should be condemned as unethical unless specifically authorized by the Court, and that Opinion No. 46 of this committee to the extent that it conflicts with this opinion is over-ruled. (9- 0)

Tex. Comm. On Professional Ethics, Op. 140 (1957)