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WISBAR 1971

Can a lawyer maintain and disburse a bail fund for people charged with crimes, even non-clients?

Short answer: The opinion concluded the lawyer cannot. Running such a fund would do indirectly what the statute barring an attorney from acting as bail forbids directly, would place the lawyer in the bail bond business, and would operate as a solicitation feeder for the lawyer's practice.

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This page answers the general question as of 1971. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.

Currency note: this opinion is from 1971
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
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 Not binding precedent.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

Informal Opinion 1/71 considered a plan in which a lawyer or law office would hold funds from persons or organizations other than clients in a special account, separate from the lawyer's trust account, available for prompt cash bail for persons charged with crimes, with checks handled by the designated lawyer or firm members, even where those bailed were not then clients and no fund money was used for persons who later became clients. The committee concluded the plan would be improper and unethical.

The committee gave two principal reasons. First, the plan would violate the spirit, if not the letter, of Wisconsin Statutes sec. 757.34, which provides that no attorney shall be taken as bail or security on any undertaking, bond, or recognizance in a civil or criminal action; the proposal would let the lawyer do indirectly what he is forbidden to do directly, and the statute sits within the general chapter on the conduct of attorneys. Second, the lawyer or firm would be at least indirectly in the bail bond business, and for the service to function it would have to be well known that the lawyer or office had it readily available, which would involve solicitation of business in violation of DR 2-103, DR 2-102(E), and EC 2-9.

The committee added the long-recognized principle that although a lawyer may engage in other businesses than law, he may do so only if the other business is not a "feeder" for the practice of law. It listed examples, such as income tax service, claim adjusting, investment advising, marital counseling, and lending agencies, that are inherently feeders when operated notoriously or by advertising or solicitation, making it unethical for a lawyer to engage in them.

Currency note

This opinion was issued in 1971, 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 of Professional Responsibility (DR 2-102, DR 2-103, EC 2-9) together with Wis. Stat. sec. 757.34. The current counterparts are SCR 20:7.3 / Model Rule 7.3 (solicitation of clients) and SCR 20:5.7 / Model Rule 5.7 (responsibilities regarding law-related services). The solicitation rules it relies on predate Bates v. State Bar of Arizona (1977), which struck categorical advertising bans. 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 maintain a bail fund for criminal defendants?

A: Under this opinion, no. The committee held the plan improper and unethical, as doing indirectly what the statute bars an attorney from doing directly.

Q: What statute did the committee rely on?

A: Wis. Stat. sec. 757.34, providing that no attorney shall be taken as bail or security on any bond or recognizance in a civil or criminal action.

Q: Why was solicitation a concern?

A: The committee reasoned that for the bail service to work it must be widely known the lawyer offered it, making it a solicitation feeder for the practice, contrary to DR 2-103, DR 2-102(E), and EC 2-9.

Background and rules framework

The opinion applied Wis. Stat. sec. 757.34 and the former Code's solicitation provisions (DR 2-103, DR 2-102(E), EC 2-9) and the business-as-feeder doctrine. The current counterparts are SCR 20:7.3 / Model Rule 7.3 (solicitation) and SCR 20:5.7 / Model Rule 5.7 (law-related services).

Citations and references

Rules of Professional Conduct:

  • Model Rule 7.3 / SCR 20:7.3 (solicitation of clients); former DR 2-103, DR 2-102(E), EC 2-9
  • Model Rule 5.7 / SCR 20:5.7 (responsibilities regarding law-related services)

Statutes:

  • Wis. Stat. sec. 757.34 (no attorney to be taken as bail or security)

See also

Source

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