WISBAR 1996

Can a Wisconsin attorney post bail for an arrested person, and does it matter whose money is used?

Short answer: The opinion concluded that an attorney may post bail using funds that are not the attorney's own, including issuing a trust check from a client's own funds, without ethical violation. But a Wisconsin statute (Wis. Stat. 757.34) flatly prohibits an attorney from posting their own funds or assets as bail, bond, or surety for another, with no exceptions; doing so is misconduct under SCR 20:8.4(f) and may also violate SCR 20:1.8(e), because bail is not a court cost or litigation expense.

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This page answers the general question as of 1996. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.

View original ethics opinion (PDF)

Plain-English summary

Opinion E-96-1 asked whether it violates the Rules of Professional Conduct for an attorney to post bail, by check or cash, for an arrested person. The committee drew a sharp line based on whose money is used. If the funds or assets posted are not the attorney's own property, there is no ethical violation and no violation of Wis. Stat. 757.34; the committee noted specifically that an attorney holding client funds in a trust account is not ethically prohibited from issuing trust checks for a client's bail, bond, or surety.

The attorney's own funds are different. Wisconsin's bail statute, Wis. Stat. 757.34, prohibits an attorney from posting their own funds or assets as bail, bond, or surety for another person in any civil or criminal case. The committee noted the Wisconsin Supreme Court has held there are no exceptions to this prohibition and that it applies to all attorneys whether or not an attorney-client relationship is involved (citing Gilbank v. Stephenson and Withers v. Tucker). An attorney who violates the statute engages in misconduct under SCR 20:8.4(f). The committee further concluded that an attorney who provides their own funds for a client's bail or surety may also violate SCR 20:1.8(e), because a bail, bond, or surety is not a court cost or an expense of litigation within that rule's exceptions. The committee reaffirmed its earlier conclusion in E-75-0.

Currency note

This opinion was issued in 1996, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct (the state's Ethics 2000 update). Subsequent rule amendments or later opinions may have changed the analysis, and statutory citations such as Wis. Stat. 757.34 should be verified against current law. 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 an attorney post bail for an arrested person at all?

A: Yes, with money that is not the attorney's own. The committee concluded that posting bail with funds that are not the attorney's property is not an ethical violation, and that an attorney may issue a trust check from a client's own funds for bail.

Q: Can an attorney use their own money to post a client's bail?

A: No. The committee concluded that Wis. Stat. 757.34 prohibits an attorney from posting their own funds or assets as bail, bond, or surety for another, with no exceptions, and that violating the statute is misconduct under SCR 20:8.4(f).

Q: Is posting bail with the attorney's own funds also a conflict or assistance problem?

A: It may be. The committee concluded that providing the attorney's own funds for a client's bail may also violate SCR 20:1.8(e), because bail is not a court cost or litigation expense within that rule's exceptions.

Background and rules framework

The opinion interpreted SCR 20:1.8(e) / Model Rule 1.8 (financial assistance to a client in connection with litigation, and its narrow exceptions for court costs and litigation expenses) and SCR 20:8.4(f) / Model Rule 8.4 (misconduct, including knowingly assisting a violation), reading them against Wisconsin's bail statute, Wis. Stat. 757.34.

Citations and references

Rules of Professional Conduct:

Wis. SCR 20:1.8(e) / Model Rule 1.8 (financial assistance to clients)
Wis. SCR 20:8.4(f) / Model Rule 8.4 (misconduct)

Statutes:

Wis. Stat. 757.34 (attorney prohibited from posting own funds as bail, bond, or surety)

Cases:

Gilbank v. Stephenson, 30 Wis. 155 (1872), no exceptions to the bail prohibition
Withers v. Tucker, 28 Wis. 2d 82 (1965)

Other opinions cited:

Wisconsin Ethics Op. E-75-0 (reaffirmed)

Source

Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-96-1.pdf

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