Opinion 366
Question Presented
An attorney engaged in the general practice desires to transfer certain real property to his secretary's father who will use the property in the bail bond business. In return, the father would pay the attorney a sum equal to a fair percentage rate of return on the value of the property. The father would solely operate the business and there would be only an oral agreement that the land would be transferred back to the attorney upon demand or in case of death and subject to any liabilities for outstanding bonds. The business would be operated as a location entirely different from the attorney=s office and the father would be instructed to refer no business to the attorney. Is such a business arrangement improper upon the part of the attorney?
FINANCIAL INTEREST IN BAIL BOND BUSINESS
It is not improper for a practicing attorney to have a financial interest in a bail bond business if he does not otherwise participate in the operation of the business and will not accept employment from a person whose bail bond has been written by the business.
Code of Professional Responsibility: DR 1-201 Through DR 2-105
Texas Opinions 46, 140, 141, 248, 251 and 347 all deal with the question, in one form or another, of the propriety of a practicing attorney engaging in the business of making bail bonds. Opinion No. 141 holds that it is unethical for an attorney to be in any way connected with, or have an interest in, any company which is engaged in the business of making bail or other bonds in criminal cases. Such holding is, in the opinion of the Committee, too broad.
The primary basis for the above opinions has been that the operation of the bail bond business constituted "indirect solicitation" and served as a "feeder" to the law practice. These phrases have been entirely omitted from the Code of Professional Responsibility indicating an intent not to rely on such vague phrases as standards by which to judge the outside activities or occupations of attorneys. Such activities are now governed by several comprehensive but specific disciplinary rules, particularly DR 1-201 through DR 2-105.
No disciplinary rule forbids an attorney to engage in another business or profession. To the contrary, DR 2-102 (E) expressly recognizes the right of an attorney to engage in both the practice of law and another profession or business and sets forth certain prohibitions while the attorney is carrying on the second business or profession:
"A lawyer who is engaged both in the practice of law and another profession or business shall not so indicate on his letterhead, office sign or professional card, nor shall he identify himself as a lawyer in any publication in connections with his other profession or business."
In the question presented though the attorney has a financial interest in the bail bond business he does not participate in the operation of the business. Additionally, if the attorney will not accept employment of any person whose bail bond has been written by the business, then under such circumstances there would be no impropriety so long as the requirements of DR 2-102 (E) are met.
The bail bond business is so law-related that if the attorney engages in such business to any extent it will necessarily involve the practice of law, and, therefore, the attorney would be considered to be engaged in the practice of law while engaging in the business. Accordingly, under these circumstances, he must comply not merely with DR 2-102 (E) but with all other provisions of the Code of Professional Responsibility.
Bluebook Citation
Tex. Comm. On Professional Ethics, Op. 366 (1974)