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