Can a non-profit legal services organization run a bail fund for indigent criminal clients, administered by its staff lawyers?

Plain-English summary

Opinion E-75-0 considered a non-profit legal services corporation whose staff attorneys are full-time employees barred from private practice. The corporation administered a bail fund, financed by contributions from a religious organization, as a convenience to that organization, to aid the indigent criminally accused. The question was whether maintaining and administering the fund through the corporation's attorneys was proper.

The committee answered no. It pointed to Wis. Stat. § 757.34, which states that no practicing attorney in the state shall be taken as bail or security on any undertaking, bond, or recognizance in a civil or criminal proceeding. It also pointed to DR 2-103 of the Code of Professional Responsibility, which prohibits a lawyer from giving anything of value to a person or organization to recommend or secure the lawyer's employment, and to DR 5-103, particularly DR 5-103(B), which provides that a lawyer should not advance or guarantee financial assistance to a client. The committee further invoked Canon 9, that a lawyer should avoid even the appearance of professional impropriety.

The committee concluded that it is improper and unethical for the non-profit legal services corporation to maintain a bail fund for the indigent criminally accused administered or co-administered by an attorney or attorneys.

Currency note

This opinion was issued in 1975, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update), and it applies the former Code's DR 2-103, DR 5-103(B), and Canon 9, together with Wis. Stat. § 757.34. The current counterpart to the rule against advancing financial assistance to a client is SCR 20:1.8(e) / Model Rule 1.8(e). 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 Treat this page as historical context, not current guidance.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 or legal aid organization post or fund bail for a client?

A: Under this opinion, no, where the attorneys administer the fund. The committee found it improper for a non-profit legal services corporation to maintain a bail fund for indigent clients administered or co-administered by its attorneys, citing the statutory bar on attorneys acting as bail and DR 5-103(B)'s prohibition on advancing financial assistance to a client.

Q: Which rules did the committee rely on?

A: Wis. Stat. § 757.34 (no practicing attorney may be taken as bail), DR 2-103 (no giving value to secure employment), DR 5-103(B) (no advancing financial assistance to a client), and Canon 9 (avoiding the appearance of impropriety).

Q: Did the religious-organization funding source change the result?

A: No. The committee noted the fund was financed by a religious organization's contributions and administered as a convenience, but it still concluded that administration by the corporation's attorneys was improper.

Background and rules framework

The opinion applied the former Code's DR 2-103, DR 5-103(B), and Canon 9, along with Wis. Stat. § 757.34, to a legal services corporation's bail fund. The modern counterpart to the prohibition on a lawyer advancing financial assistance to a client is SCR 20:1.8(e) / Model Rule 1.8(e).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.8(e) / SCR 20:1.8(e) (financial assistance to a client); former Code DR 2-103, DR 5-103(B), Canon 9

Statutes:

• Wis. Stat. § 757.34 (practicing attorney not to be taken as bail or security)

See also

• WI Ethics Op. E-96-1: Posting of Bail by Attorneys
• WI Ethics Op. E-76-6: Attorney Participation in a Client Fee-Financing Plan

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-75-0.pdf