If a Texas lawyer personally posts a bail bond for a client, can the lawyer later go off the bond and have the client jailed?

Plain-English summary

The inquiry asked whether it violates the Code for an attorney who has personally posted a criminal bail bond for a client to later go off the bond during the representation, causing the client to be jailed. The Committee concluded that it would, unless the attorney knows as a matter of fact that the client is planning to commit a crime or fraud or is about to refuse to comply with the terms of the bond.

The Committee explained that when a lawyer personally executes a bail bond for a client, the lawyer both renders a service and creates a potential conflict, taking on a business relationship and an overriding obligation to the court alongside the attorney-client relationship. Reading Canons 4, 5, and 7 together, it concluded that a lawyer could relieve himself of the bond only if the client was about to act contrary to the law. Under DR 7-101(A)(3), a lawyer may not intentionally prejudice or damage his client except as required by DR 7-102(B), so a lawyer who surrenders the client for any reason other than the one DR 7-102 provides would violate DR 7-101(A)(3). It supported this with EC 4-2, EC 4-5, and EC 5-2 on protecting client information and avoiding employment where the lawyer's personal interests may adversely affect the representation.

The Committee acknowledged that Article 17.16 of the Code of Criminal Procedure lets a surety relieve himself by surrendering the accused, but read that as the legal right of a surety or bondsman that does not override a lawyer's ethical responsibilities. It noted that Article 2372(p)-3, V.A.T.C.S., exempts State Bar members who post bonds for clients they actually represent from the bondsman licensing statute, and reasoned that the exemption exists because the lawyer is under a higher responsibility to the client than a professional bondsman would be.

Currency note

This opinion was issued in 1977, under the former Texas Code of Professional Responsibility, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. Conflicts between a lawyer's own interests and a client are now governed by Texas Rule 1.06, financial assistance and business dealings with clients by Texas Rules 1.08, and confidentiality by Texas Rule 1.05; the ABA analogs are Model Rules 1.7, 1.8, and 1.6. The statutes cited (Article 17.16 of the Code of Criminal Procedure and Article 2372(p)-3, V.A.T.C.S.) have since been amended or recodified. 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: Could a lawyer who posted a client's bail bond surrender the client and have him jailed?

A: Per the opinion, only in narrow circumstances. The Committee concluded a lawyer could go off the bond and cause the client to be jailed only if the lawyer knows as a fact that the client is planning a crime or fraud or is about to refuse to comply with the bond's terms.

Q: Why did the Committee treat posting a client's bond as creating a conflict?

A: It reasoned that executing the bond puts the lawyer in a business relationship and an obligation to the court alongside the attorney-client relationship, creating a potential conflict between the lawyer's interests and the client's.

Q: Didn't the surety statute let the lawyer surrender the client?

A: The Committee said Article 17.16 of the Code of Criminal Procedure grants a surety the legal right to surrender the accused, but that right does not override the lawyer's separate ethical responsibilities to the client.

Background and rules framework

The opinion interprets Canons 4, 5, and 7 and DR 7-101(A)(3) of the former Texas Code of Professional Responsibility, read against DR 7-102(A) and (B) and the supporting Ethical Considerations (EC 4-2, EC 4-5, EC 5-2). The Committee treated DR 7-102(B), which permits or requires disclosure when a client has perpetrated a fraud, as the only basis on which a lawyer may take action that prejudices the client. The modern analogs are Texas Rules 1.06 (conflicts involving the lawyer's own interest), 1.08 (prohibited transactions), and 1.05 (confidentiality), with ABA Model Rules 1.7, 1.8, and 1.6.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (conflicts of interest involving the lawyer's own interests); MR 1.8 (prohibited transactions, including financial assistance to a client); MR 1.6 (confidentiality), as the modern analogs
• Canons 4, 5, 7; DR 7-101(A)(3), DR 7-102(A)(7), DR 7-102(A)(8), DR 7-102(B); EC 4-2, EC 4-5, EC 5-2 (former Texas Code of Professional Responsibility)

Statutes:

• Article 17.16, Code of Criminal Procedure (surety's right to surrender the accused)
• Article 2372(p)-3, V.A.T.C.S. (bondsman licensing statute; exemption for State Bar members at Section 3(b), surrender affidavit at Section 13)

See also

• TX Ethics Op. 449: Acquiring an Interest in Disputed Property as Fee Security
• TX Ethics Op. 389: Disclosing a Former Joint Client's Confidences and Perjury
• TX Ethics Op. 387: Corporate Counsel's Duties When an Officer Reveals Wrongdoing

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-388/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_388.pdf

Original opinion text

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

QUESTION PRESENTED

Related to Cannons 4, 5 and 7

Is it a violation of the Code of Professional Responsibility for an attorney to personally post a criminal bail bond for a client and then during the representation of the client, go off the bond resulting in the client being placed in jail?

STATEMENT OF FACTS

It would be a violation of the Code of Professional Responsibility for an attorney who has personally posted a bail bond for a client whom he represents in the matter out of which the bail bond arose, to go off such bond and thereby cause his client to be placed in jail, unless such attorney knows as a matter of fact that his client is planning to commit a crime, a fraud, or is about to refuse to comply with the terms of the bond.

When an attorney personally executes a bail bond for and on behalf of a client accused of a crime, he, at such time, is both rendering a service to the client and creating a potential area of conflict between himself and his client. On the one hand, the attorney-client relationship has been established; and on the other hand, the attorney has involved himself in a "business relationship" with the client and an overriding obligation to the Court.

Canon 7 provides that "a lawyer should represent a client zealously within the bounds of the law." Canon 4, on the other hand, requires "a lawyer (to) preserve the confidence and secrets of a client"; and Canon 5 provides that "a lawyer should exercise independent professional judgment on behalf of a client."

These Canons, when considered conjunctively, strongly indicate that a lawyer could only turn his client in and relieve himself from the obligations of the bond only in the event that the client is about to commit an act contrary to the law.

DR 7-102 provides "(A) In his representation of a client, a lawyer shall not (7) counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent." (8) Knowingly engage in other illegal conduct or conduct contrary to a disciplinary rule." Further, provision (B) of DR 7-102 provides "a lawyer who receives information clearly establishing that: (1) his client has, in the course of the representation, perpetrated a fraud upon a person or tribunal, shall promptly call upon his client to rectify same and if his client refuses or is unable to do so, he shall reveal the fraud to the affected person or tribunal."

DR 7-101, on the other hand, provides that: (A) a lawyer shall not intentionally: (3) prejudice or damage his client during the course of the professional relationship, except as required under DR 7-102 (B)".

It, therefore, would be clearly apparent that a lawyer who turns his client in to the authorities for any other reason than that provided in DR 7-102 would be in violation of DR 7-101 (A)(3).

Several ethical considerations come to mind in further support of this Opinion. EC 4-2 says in part: "a lawyer must always be sensitive to the rights and wishes of his client and act scrupulously in the making of decisions which may involve disclosure of information obtained in his professional relationship." EC 4-5 provides in part: "a lawyer should not use information acquired in the course of the representation of a client to the disadvantage of a client and a lawyer should not use, except with the consent of his client, after full disclosure, such information for his own purposes."

EC 5-2 provides in part: "a lawyer should not accept proffered employment if his personal interests or desires will, or there is a reasonable probability that they will, affect adversely the advice to be given or services to be rendered the prospective client."

It is true that Article 17.16, Code of Criminal Procedure, provides that "those who have become bail for the accused, or either of them, may at any time relieve themselves of their undertaking by surrendering the accused into the custody of the Sheriff of the County where he is prosecuted." This right, however, seems to speak to the legal right of a surety or bondsman, but does not override the ethical responsibilities and considerations of a lawyer who has accepted the responsibilities imposed upon him by the attorney-client relationship.

Further, Article 2372(p)-3, V.A.T.C.S., a statute providing for the licensing and regulation of bondsmen, exempts members of the State Bar of Texas who personally execute bail bonds or act as sureties for persons they actually represent in criminal cases from the provisions of such statute [Sec. 3(b)]. However, even under this Act (Section 13), the bondsman must execute an affidavit stating the reasons why the principal is being surrendered and then gives the Court a right to require return of the bond fee or a portion thereof, or to refuse to accept the tender of the principal and a release of the bondsman from his obligation. Here again, it should be pointed out that the provisions of the Act apply to a professional bail bondsman and not to a member of the State Bar, the apparent reasons being that the lawyer is under the onus of a higher responsibility to the client than would be a professional bondsman.

Tex. Comm. On Professional Ethics, Op. 388 (1977)