Opinion 251
Question Presented
Is it a violation of the Canons of Ethics for an attorney to act as surety on his client's bond in a criminal case when not specifically authorized by the Court but where such client is indigent?
Under the above stated circumstances, is the lawyer's ethical duty altered by the fact that he is related to the client either by consanguinity or affinity?
Under the above stated circumstances, is the attorney's ethical duty altered by the fact that he is acting as court appointed counsel, absent any relationship to the client other than that of attorney-client?
18 Baylor L. Rev. 327 (1966)
SOLICITATION - INDIRECT ADVERTISING - ATTORNEY AS SURETY
lt is not unethical for a lawyer to act as surety on his client's criminal bond when there is no element of advertising, solicitation, touting, or serving as a "Feeder" for his law practice, apparent or inherent in the action of the member. Opinion No. 140, to the extent that it conflicts with this opinion, is overruled.
Canon 24.
Generally speaking, it is a most undesirable practice for an attorney to act as surety for his client (without the permission of the court), either in civil or criminal cases; however, it seems unfair to say that any lawyer who acts as surety for his client in any criminal case, without special permission of the court, is violating Canon 24. The question is one of advertising and solicitation and whether or not the lawyer, by so acting, intends to advertise, to solicit business, or to "feed" his law practice. The committee is of the opinion that, if there exists in the particular situation no element of advertising, soliciting, touting, or "feeding" a law practice, there would be no violation of Canon 24.
The committee feels that the principal factor to be considered in each of the situations presented above is not whether the client is indigent, whether the lawyer is related to his client, or whether the lawyer was court-appointed, but whether or not the lawyer, in acting as surety under these circumstances, is motivated by a desire to advertise or solicit. If a lawyer acts as surety for a client who is indigent, who is related to the lawyer, or one who is a client by reason of court- appointment, it may indicate, though surely not conclusively, that the lawyer did not solicit that particular case; however, even though these circumstances are material, the key factor is the lawyer's motive when he signs his client's bond.
With further reference to the second situation set out in the inquiry, the committee believes that it is not unethical for a lawyer to serve as surety on his client's criminal bond when there is a close, pre-existing relationship between the attorney and client sufficient to indicate clearly that the attorney is not at all motivated by a desire to advertise or to solicit, directly or indirectly, this or subsequent legal work. Such close relationship might include close kinship by consanguinity or affinity, a long-term, close, personal friendship, or a substantial, pre-existing, attorney-client relationship. There can be no merit in saying that, for example, a lawyer cannot himself ethically bail out his father-in-law, his next-door neighbor, or his main client. The necessity for such action on the part of an attorney may occur at a time when a court's permission cannot be secured and the attorney's action should not be considered solicitation, advertising or even undignified.
The committee believes that there is no violation in any of the situations presented above if the lawyer, in so acting, is not motivated by a desire to advertise, solicit, or feed his law business. Opinion No. 140 is modified to the extent that it conflicts with this opinion. (9-0.)
Bluebook Citation
Tex. Comm. On Professional Ethics, Op. 251 (1952)