Can a lawyer act as surety on a client's criminal bond without violating the rules against advertising and solicitation?

Plain-English summary

The inquiry asked whether it violates the Canons for a lawyer to act as surety on an indigent client's criminal bond without the court's specific authorization, and whether the answer changes if the lawyer is related to the client or is court-appointed counsel.

The Committee said that acting as surety for a client without the court's permission is generally a most undesirable practice, but that it would be unfair to say any lawyer who does so in a criminal case necessarily violates Canon 24. It framed the question as one of advertising and solicitation, turning on whether the lawyer, in acting as surety, intends to advertise, solicit business, or "feed" his practice. If no element of advertising, soliciting, touting, or feeding is present, there is no violation of Canon 24.

The Committee said the principal factor in each situation was not whether the client was indigent, related to the lawyer, or court-appointed, but whether the lawyer was motivated by a desire to advertise or solicit; those circumstances might indicate, though not conclusively, that the lawyer did not solicit the case, but the key factor was the lawyer's motive in signing the bond. It added that it is not unethical to serve as surety where a close, pre-existing relationship, such as close kinship, a long-term personal friendship, or a substantial pre-existing attorney-client relationship, clearly shows the lawyer is not motivated by a desire to solicit. The Committee modified Opinion 140 to the extent it conflicted with this opinion. The ruling was 9-0.

Currency note

The official source's citation line gives the year as 1952; that appears to be a typographical error, because Opinion 251 falls within the Committee's 1962 numbering sequence (Opinions 248 through 259 are dated 1962 and 1963, and the adjacent Opinion 252 cites a 1958 case), so this page uses 1962. This opinion was issued in 1962, under the former Texas Canons of Ethics, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. It also predates Bates v. State Bar of Arizona, 433 U.S. 350 (1977), which loosened categorical advertising restrictions, though prohibitions on solicitation were not eliminated. 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 Treat this page as historical context, not current guidance.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 a criminal client?

A: Under this opinion, yes, if there is no element of advertising, solicitation, touting, or feeding the lawyer's practice. The Committee said acting as surety is generally undesirable but does not necessarily violate Canon 24.

Q: Does it matter that the client is indigent, related to the lawyer, or court-appointed?

A: The Committee said those facts are material but not decisive; they may indicate the lawyer did not solicit the case, but the key factor is the lawyer's motive in signing the bond.

Q: When is acting as surety clearly proper?

A: The Committee said it is not unethical where a close, pre-existing relationship, such as close kinship, a long-term close friendship, or a substantial pre-existing attorney-client relationship, clearly shows the lawyer is not motivated by a desire to advertise or solicit.

Background and rules framework

The opinion interprets former Texas Canon 24, which prohibited advertising and solicitation by lawyers, as applied to a lawyer who acts as surety on a client's bond. The modern analogs are ABA Model Rule 7.1, on communications concerning a lawyer's services, and Model Rule 7.3, on solicitation of clients.

Citations and references

Rules of Professional Conduct:

• MR 7.1 (communications concerning a lawyer's services), as the modern analog
• MR 7.3 (solicitation of clients), as the modern analog
• Texas Canon 24 (former canon)

Other opinions cited:

• Texas Opinion 140: modified to the extent it conflicts with this opinion

See also

• TX Ethics Op. 265: Soliciting Work via a Friend
• TX Ethics Op. 266: Selling a Law Practice's Clientele
• TX Ethics Op. 280: Attorney-Holds-Duplicate Will Clause

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-251/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_251.pdf

Original opinion text

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

Is it a violation of the Canons of Ethics for an attorney to act as surety on his client's bond in a criminal case when not specifically authorized by the Court but where such client is indigent?

Under the above stated circumstances, is the lawyer's ethical duty altered by the fact that he is related to the client either by consanguinity or affinity?

Under the above stated circumstances, is the attorney's ethical duty altered by the fact that he is acting as court appointed counsel, absent any relationship to the client other than that of attorney-client?

18 Baylor L. Rev. 327 (1966)

SOLICITATION - INDIRECT ADVERTISING - ATTORNEY AS SURETY
lt is not unethical for a lawyer to act as surety on his client's criminal bond when there is no element of advertising, solicitation, touting, or serving as a "Feeder" for his law practice, apparent or inherent in the action of the member. Opinion No. 140, to the extent that it conflicts with this opinion, is overruled.

Canon 24.

Generally speaking, it is a most undesirable practice for an attorney to act as surety for his client (without the permission of the court), either in civil or criminal cases; however, it seems unfair to say that any lawyer who acts as surety for his client in any criminal case, without special permission of the court, is violating Canon 24. The question is one of advertising and solicitation and whether or not the lawyer, by so acting, intends to advertise, to solicit business, or to "feed" his law practice. The committee is of the opinion that, if there exists in the particular situation no element of advertising, soliciting, touting, or "feeding" a law practice, there would be no violation of Canon 24.

The committee feels that the principal factor to be considered in each of the situations presented above is not whether the client is indigent, whether the lawyer is related to his client, or whether the lawyer was court-appointed, but whether or not the lawyer, in acting as surety under these circumstances, is motivated by a desire to advertise or solicit. If a lawyer acts as surety for a client who is indigent, who is related to the lawyer, or one who is a client by reason of court- appointment, it may indicate, though surely not conclusively, that the lawyer did not solicit that particular case; however, even though these circumstances are material, the key factor is the lawyer's motive when he signs his client's bond.

With further reference to the second situation set out in the inquiry, the committee believes that it is not unethical for a lawyer to serve as surety on his client's criminal bond when there is a close, pre-existing relationship between the attorney and client sufficient to indicate clearly that the attorney is not at all motivated by a desire to advertise or to solicit, directly or indirectly, this or subsequent legal work. Such close relationship might include close kinship by consanguinity or affinity, a long-term, close, personal friendship, or a substantial, pre-existing, attorney-client relationship. There can be no merit in saying that, for example, a lawyer cannot himself ethically bail out his father-in-law, his next-door neighbor, or his main client. The necessity for such action on the part of an attorney may occur at a time when a court's permission cannot be secured and the attorney's action should not be considered solicitation, advertising or even undignified.

The committee believes that there is no violation in any of the situations presented above if the lawyer, in so acting, is not motivated by a desire to advertise, solicit, or feed his law business. Opinion No. 140 is modified to the extent that it conflicts with this opinion. (9-0.)

Tex. Comm. On Professional Ethics, Op. 251 (1952)