MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2003-03
Attorneys acting as bail sureties for criminal defendant clients
Your inquiry related to the repeal of Maryland Rule 16-402 and indicates that since repeal of that Rule, members of the Bar have begun posting bail.1 You inquire as to whether it is unethical for an attorney to post bail in a case in which that attorney represents the defendant. You inquire as to whether an attorney would violate Rule 1.8(e), which prohibits a lawyer from providing financial assistance to the client. You also inquire as to whether the posting of bail by an attorney would violate Rules 1.8(j), 1.5(d)(2) and 1.7(b). You also ask whether it would be advisable to reinstate Rule 16-402.
The question you ask relating to the repeal of Maryland Rule 16-402 and whether or not it would be advisable to reinstate that Rule are legal issues which this Committee does not address. Similarly, the legal interpretation and the legislative history of that Rule are not matters that are within the Committee’s purview.
Rule 1.8(e) of the Maryland Rules of Professional Conduct provides as follows:
Rule 1.8(e)(1)(2). A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that:
- a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and
- a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.
It is the opinion of the Committee that an attorney may not use his or her own funds in order to post bail in connection with the representation of a criminal client. It is also the Committee’s opinion that an attorney may not pledge his or her personal credit as security for the appearance of the client in court. The Committee does not believe that the use of the attorney’s money or credit would constitute an advance of court costs, or expenses of litigation, which would fit under the exceptions of 1.8(e) 1 or 2.
The Committee does not, however, believe that it would be unethical for an attorney, on behalf of a client and in the course of the representation of that client, to pay someone else’s funds to the court as security for purposes of posting bail. The attorney would merely be acting as a conduit for payment of the funds to the court. That would allow the attorney, as the representative of the client, to pay the funds of a third person, or of the client himself, to the court in satisfaction of the bail requirement.
It is the understanding of the Committee that the attorney, merely by paying the funds of another to the court, would not be obligating himself, for any amount whatso-ever. It is not within the purview of the Committee to analyze the bail bond form which you appended to your inquiry or the procedures followed by the various courts relating to the posting of bail bonds.
Since it is the Committee’s opinion that an attorney may not use his own funds to post bail on behalf of a client, a discussion of the tangential applicability of Rule 1.8(j), 1.5(d)(2) and 1.7 is unnecessary.
1Rule 16-402. Attorneys and other officers not to become sureties.
No attorney or other officer or employee of a court, or of any office serving a court, shall be accepted as security for costs or surety on any bond, or be received as bail in any case.