Can a lawyer act as surety on a criminal defendant's bail bond and then represent him, and can the lawyer's name appear on a jail bondsman list shown to prisoners?

Plain-English summary

A practicing attorney habitually acted as surety on bail bonds in criminal cases and then represented the individuals whose bonds he wrote, under a district court order on file authorizing the lawyer-bondsman to act as surety, while the sheriff's office exhibited a list of attorney and non-attorney bondsmen to prisoners in the jail. The Committee was presented with seven questions about whether this practice, the representation that follows, the bondsman list, and the court's general authorization comply with the Canons.

The Committee identified Canon 24 (solicitation, direct or indirect), with the possible addition of Canon 6 (conflicting interests), as the canon involved, observing that acting as surety on criminal bonds could readily serve as a "feeder" to a law practice, similar to a lawyer who owns or works for a title company. It held that after the attorney-client relationship exists, it is not unethical for an attorney to sign as surety on his client's criminal bond, so long as he does not do so with such notoriety as to constitute indirect solicitation. If the relationship does not yet exist, it is unethical for the attorney to sign as bondsman and thereafter represent the principal, and this is true even if the court has authorized him to sign as bondsman.

On the bondsman list, the Committee held it is a violation of Canon 24 for an attorney to allow his name to be on a bondsman list he knows will be shown to prisoners in the jail; whether the list contains attorneys or non-attorneys is irrelevant, and the violation stands regardless of authorization by a court or a bar association. On the need for court leave, the Committee declined to decide the question of law, stating that if there is no legal impediment, the Canons do not require leave of court before an attorney acts as bondsman, provided the attorney-client relationship exists when he signs. The Committee modified prior Opinions 46, 140, 141, 248, and 251 to the extent they conflict.

Currency note

This opinion was issued in 1969, 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), and Shapero v. Kentucky Bar Association, 486 U.S. 466 (1988), which reshaped the constitutional limits on solicitation and advertising rules. Solicitation is now governed by Texas Rule 7.03 and ABA Model Rule 7.3, and a lawyer's financial dealings with a client by Texas Rule 1.08 and Model Rule 1.8. 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: May a lawyer act as surety on his client's criminal bond?

A: The Committee concluded it is not unethical once the attorney-client relationship exists, so long as the lawyer does not do so with such notoriety as to constitute indirect solicitation.

Q: What if the lawyer signs the bond before he is retained?

A: That is a violation. The Committee held it is unethical for an attorney to sign as bondsman when no attorney-client relationship exists and thereafter represent the principal, even if a court authorized him to sign.

Q: May a lawyer's name appear on a jail bondsman list shown to prisoners?

A: No. The Committee held that allowing one's name on a bondsman list known to be shown to prisoners violates Canon 24, regardless of whether the list includes non-attorneys or was authorized by a court or bar association.

Q: Does a court order generally authorizing the lawyer to write bonds resolve the ethics question?

A: No. The Committee said it does not decide questions of law, but the Canons do not require leave of court if there is no legal impediment and the attorney-client relationship exists when the bond is signed; a general authorization does not cure signing before the relationship exists.

Background and rules framework

The opinion interprets former Texas Canon 24 (solicitation, direct or indirect) and references Canon 6 (conflicting interests), treating the bonding practice as a potential "feeder" to the law practice. The modern analogs are Texas Rule 7.03 and ABA Model Rule 7.3 (solicitation) and Texas Rule 1.08 and Model Rule 1.8 (a lawyer's financial dealings with a client).

Citations and references

Rules of Professional Conduct:

• MR 7.3 (solicitation of clients), as the modern analog
• MR 1.8 (current client conflicts; financial dealings with a client), as the modern analog
• Texas Canons 6 and 24 (former Texas Canons of Ethics)

Other opinions cited:

• Texas Ethics Opinions 46, 140, 141, 248, 251 (modified to the extent of conflict); 230, 265, 336

See also

• TX Ethics Op. 366: Attorney Holding a Financial Interest in a Bail Bond Business
• TX Ethics Op. 351: Attorney Accepting a Referral Percentage of a Bond Premium
• TX Ethics Op. 599: Lawyer-Bondsman No-Contest-Plea Bond Clause

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-347/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_347.pdf

Original opinion text

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

QUESTION PRESENTED

A practicing attorney habitually engages in the practice of acting as surety on bail bonds in criminal cases, thereafter representing the individuals upon whose bond he acts as surety. The Judge of the District Court of the county where the above practice occurs has entered an order, which is filed with the District Clerk, authorizing the lawyer-bondsman to engage in the practice as acting as surety. It is the practice of the Sheriff's office at the county jail to exhibit a list of attorney bondsmen and non-attorney bondsmen to the prisoners that are placed in the jail.
Is it a violation of the Texas Bar Canons of Ethics for an attorney to habitually engage in the practice of making bail bonds in criminal cases?
Is it a violation of the Texas Bar Canons of Ethics for an attorney who habitually engages in the practice of making bonds in criminal cases to represent in Court that person upon whose bond he is surety in the criminal case in which the bond is made?
Is it a violation of the Texas Bar Canons of Professional Ethics for an attorney to allow his name to be on a bondsman list with non-attorney bondsmen, which list is shown to each prisoner placed in the county jail?
Is an order filed in a Court of record generally authorizing an attorney to engage in the practice of making bail bonds in criminal cases sufficient to ethically authorize that attorney to act as surety on a bail bond in any and all criminal cases?
Must the attorney secure an order from the Judge of the Court in which the criminal case is pending in each individual case authorizing him to act as surety on the bond prior to his so acting as surety on the bail bond in said case?
May a county bar association, after deliberation and discussion, by resolution, authorize an attorney to be on a bondsman list with non-attorneys, said list with the consent of the Sheriff's office and to be exhibited to each prisoner at the time said prisoner is admitted to jail?
May a county bar association, after deliberation and discussion, authorize an attorney to be on a list, said list with the consent of the Sheriff's office to be maintained by the Sheriff's office and to be exhibited to each prisoner at the time said prisoner is admitted to jail?

23 Baylor L. Rev. 887 (1972)

SOLICITATION - INDIRECT ADVERTISING - ATTORNEY AS SURETY ON CRIMINAL BOND
An attorney may act as surety on his client's criminal bond, so long as the attorney-client relationship exists prior to the signing of the bond by the attorney. However, for the attorney to sign as a bondsman on a criminal bond, at a time when he does not represent his principal, and to thereafter represent the principal as his attorney, is solicitation in violation of Texas Canon 24. Further, it is unethical for an attorney to allow his name to be shown to prisoners in the county jail on a list of bondsmen that are authorized by the Court to write bonds.

Canon 24

The question of whether or not it is unethical for an attorney to act as surety on a criminal bond has been raised several times, and the opinions concerning this question are somewhat confusing. See Texas Opinions 46, 140, 141, 248 and 251. With the possible exception of Canon 6 (Adverse Influences and Conflicting Interests), the only Texas Canon Involved is Canon 24 (Solicitation, Direct or Indirect). The business of acting as surety on criminal bonds could very easily be a feeder to the attorney's practice of law. This would be somewhat similar to an attorney who owns or works for a title company. It would be analogous to other situations wherein an attorney, for purposes of solicitation, performs acts outside of his representation of the client. For example, it is unethical for an attorney to loan money to someone in order to obtain a case. However, after the attorney-client relationship comes into existence, it is not unethical for an attorney to loan money to his client, providing he does not do so with such notoriety as to constitute indirect solicitation. (Texas Opinion 230). It is unethical for an attorney to solicit real estate business for purposes of thereafter returning employment to do legal work (Texas Opinion 265), or to use his position as trust officer of a bank for purposes of thereafter securing employment to do legal work. (Texas Opinion 336). Therefore, we hold that after the attorney- client relationship has come into existence, it is not unethical for an attorney to sign as surety on his client's criminal bond, so long as he does not do so with such notoriety as to constitute indirect solicitation. If the attorney-client relationship has not come into existence, it is unethical for an attorney to sign as a bondsman and thereafter represent the principal on the bond in a criminal case. This is true even if the attorney has been given authority by the Court to sign as bondsman.

As to whether or not it is necessary for an attorney to obtain permission of the Court before signing as bondsman, it must be remembered that it is not within the province of this Committee to decide questions of law. If there is no legal impediment, the Texas Canons of Ethics do not require that leave of Court be obtained before an attorney signs as bondsman on a criminal bond, provided that the attorney-client relationship exists at the time he signs the bond. Accordingly, the seven questions presented above are answered as follows:
It is not unethical for an attorney habitually to engage in the practice of making bail bonds in criminal cases, if the attorney-client relationship exists at the time he signs the bondΧprovided that the attorney does not engage in this practice with such notoriety as to constitute indirect solicitation. It is a violation of the Canons of Ethics for an attorney to sign as bondsman in a criminal case at a time when the attorney-client relationship does not exist, if he thereafter acts as attorney for the principal on the bond.
The answer to this inquiry is given in answer to the first inquiry.
It is a violation of Canon 24 for an attorney to allow his name to be on a bondsman list, which list he knows will be shown to prisoners placed in the jail.
Whether or not authority of the Court is necessary legally is not answered. If there is no legal impediment, the Canons of Ethics do not require leave of Court to be obtained before an attorney may act as bondsman in a criminal case.
The answer to this inquiry is given in the answer to the fourth inquiry.
It is unethical for an attorney to be on a bondsman list and to knowingly consent to this list being exhibited to prisoners in the jail.
Whether or not the bondsman list contains non-attorneys or attorneys is irrelevant. For an attorney to knowingly allow his name to be circulated among prisoners in jail on a bondsman list is unethical regardless of whether authorization is given by Court or by a Bar Association.
Opinions 46, 140, 141, 248 and 251, to the extent they conflict with this opinion, are hereby modified.

Tex. Comm. On Professional Ethics, Op. 347 (1969)