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RICHMOND COUNTY BAR ASSOCIATION
COMMITTEE ON PROFESSIONAL ETHICS
OPINION # 12
December 16, 1994
The Committee is in receipt of a letter of inquiry by an attorney representing members of the Criminal Court Committee of the Richmond County Bar Association.
The question posed is: May an attorney who has posted bail on behalf of a defendant in a criminal action represent that defendant in the same criminal action?
The starting point in any analysis of the issues raised by this inquiry is DR 5-103(B) which provides:
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“While representing a client in connection with contemplated or pending litigation, a lawyer shall not advance or guarantee financial assistance to the client, except that:
1. A lawyer may advance or guarantee the expenses of litigation, including court costs, expenses of investigation, expenses of medical examination, and costs of obtaining and presenting evidence, provided the client remains ultimately liable for such expenses.
2. Unless prohibited by law or rule of court, a lawyer representing an indigent client on a pro bono basis may pay court costs and reasonable expenses of litigation on behalf of the client.”
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No cases or published ethics opinions to be found have squarely addressed the problem of an attorney posting bail for a client in a criminal action. However, certain analogies and conclusions may nevertheless be drawn.
It is an exercise in cavil to argue that the posting of bail on behalf of an individual charged with a crime, and then representing that person in the criminal action, is not an advancement of financial assistance to a client.
The Disciplinary Rule quoted above permits the advancement of
certain enumerated expenses of litigation, which does not include
the posting of bail. The list of permissible litigation expenses
which may be advanced, as set forth in the Disciplinary Rule,
is exclusive, and thus prohibits any other forms of “financial
assistance” to a client (Matter of Arensberg, 159 AD2d
797, 798) Advancing funds to a client for purposes of bail is
the equivalent of aiding the client in meeting personal financial
obligations (see, Id.; see also, N.Y.S. Bar Association
Ethics Opinion #553).
The motivation of the attorney in the advancement of money is irrelevant. Even if motivated by a genuine concern for a client s financial plight, the advances are nonetheless improper. (Matter of Waldman, 118 AD2d 577 (2d Dept.)). In Waldman, the attorney in question advanced sums to the client so she could pay an automobile insurance premium and mortgage payments.
Parenthetically, the definitions given in the Criminal Procedure
Law lend support to the proposition that bail is primarily a
personal obligation of the client, rather than an ordinary expense
of litigation. For example, an “application for recognizance
or bail” is an application by a “principal” (defined
as a defendant) to release him or fix bail (emphasis added).
Further, a court “fixes bail” when it designates a sum of money
and provides that if such amount is posted on behalf of the
principal, it will permit him his liberty. (emphasis added)
(C.P.L. § 500.10)
The Committee is aware of the provision in the law that money
posted as cash bail is and shall remain the property of the
person posting it unless forfeited to the court. (C.P.L. § 520.15(3)).
It may be argued that an attorney is not advancing any sums
to his or her client since the sums posted as bail legally remain
the property of the attorney advancing them. However, the Disciplinary
Rule also prohibits the guarantee of financial assistance.
In the circumstances under consideration, the fact that such
sums were posted is the equivalent of a guarantee of the client
s obligation, for purposes of the Disciplinary Rules, regardless
of the legal ownership of the funds. (see, e.g. N.Y.S. Bar Association
Ethics Opinion #133). The mere possibility that the funds may
be forfeited if defendant absconds is enough to support a conclusion
that the attorney is rendering impermissible financial assistance
to the client. Assistance has been given to the client because
the client has been able to retain money he otherwise would
have been required to post as bail.
In addition to the foregoing analysis, it appears that it is simply generally accepted that an attorney may not post bail on behalf of a client, because the New York Bar Association s Committee on Professional Ethics concluded that if an attorney wishes to assist the indigent in posting bail, he may do so by means of contributing to a fund organized for that purpose. It said:
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“No reason appears why, absent any improper motive, a lawyer may not contribute to a non-lawyer administered non-profit organization, the purpose of which is to post bail for indigent persons charged with crime. Such action would not constitute the stirring up of litigation, nor would it
place the lawyer in a position of having an interest in litigation which might influence his professional judgment.” (N.Y.S. Bar Association Ethics Opinion #220)
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Finally, notwithstanding the ‘advancement of financial assistance” approach to the problem, described above, the posting of bail may also be seen as an impermissible inducement for professional employment ( Id; DR 2—103(B)).
For these reasons, the question posed is answered in the negative.
The inquirer is reminded that this Coimnittee cannot and does not pass upon questions of law.
Pursuant to Article VI, Section 19, of the R.C.B.A. ByLaws, please be advised that the statements contained herein express the opinion of the committee alone, and have not been passed upon the Association.
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Wayne M. Ozzi
Chairman, Professional
Ethics Committee |
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