OPINION 388
February 1977

Related to Canons 4, 5, AND 7.

Question

Is it a violation of the Code of Professional Responsibility for an attorney to personally post a criminal bail bond for a client and then during the representation of the client, go off the bond resulting in the client being placed in jail?

Opinion

It would be a violation of the Code of Professional Responsibility for an attorney who has personally posted a bail bond for a client whom he represents in the matter out of which the bail bond arose, to go off such bond and thereby cause his client to be placed in jail, unless such attorney knows as a matter of fact that his client is planning to commit a crime, a fraud, or is about to refuse to comply with the terms of the bond.

Discussion

When an attorney personally executes a bail bond for and on behalf of a client accused of a crime, he, at such time, is both rendering a service to the client and creating a potential area of conflict between himself and his client. On the one hand, the attorney-client relationship has been established; and on the other hand, the attorney has involved himself in a "business relationship" with the client and an overriding obligation to the Court.

Canon 7 provides that "a lawyer should represent a client zealously within the bounds of the law." Canon 4, on the other hand, requires "a lawyer (to) preserve the confidence and secrets of a client"; and Canon 5 provides that "a lawyer should exercise independent professional judgment on behalf of a client."

These Canons, when considered conjunctively, strongly indicate that a lawyer could only turn his client in and relieve himself from the obligations of the bond only in the event that the client is about to commit an act contrary to the law.

DR 7-102 provides "(A) In his representation of a client, a lawyer shall not (7) counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent." (8) Knowingly engage in other illegal conduct or conduct contrary to a disciplinary rule." Further, provision (B) of DR 7-102 provides "a lawyer who receives information clearly establishing that: (1) his client has, in the course of the representation, perpetrated a fraud upon a person or tribunal, shall promptly call upon his client to rectify same and if his client refuses or is unable to do so, he shall reveal the fraud to the affected person or tribunal."

DR 7-101, on the other hand, provides that: (A) a lawyer shall not intentionally: (3) prejudice or damage his client during the course of the professional relationship, except as required under DR 7-102 (B)".

It, therefore, would be clearly apparent that a lawyer who turns his client in to the authorities for any other reason than that provided in DR 7-102 would be in violation of DR 7-101(A)(3).

Several ethical considerations come to mind in further support of this opinion. EC 4-2 says in part: "a lawyer must always be sensitive to the rights and wishes of his client and act scrupulously in the making of decisions which may involve disclosure of information obtained in his professional relationship." EC 4-5 provides in part: "a lawyer should not use information acquired in the course of the representation of a client to the disadvantage of a client and a lawyer should not use, except with the consent of his client, after full disclosure, such information for his own purposes."

EC 5-2 provides in part: "a lawyer should not accept proffered employment if his personal interests or desires will, or there is a reasonable probability that they will, affect adversely the advice to be given or services to be rendered the prospective client."

It is true that Article 17.16, Code of Criminal Procedure, provides that "those who have become bail for the accused, or either of them, may at any time relieve themselves of their undertaking by surrendering the accused into the custody of the Sheriff of the County where he is prosecuted." This right, however, seems to speak to the legal right of a surety or bondsman, but does not override the ethical responsibilities and considerations of a lawyer who has accepted the responsibilities imposed upon him by the attorney-client relationship.

Further, Article 2372(p)-3, V.A.T.C.S., a statute providing for the licensing and regulation of bondsmen, exempts members of the State Bar of Texas who personally execute bail bonds or act as sureties for persons they actually represent in criminal cases from the provisions of such statute [Sec. 3(b)]. However, even under this Act (Section 13), the bondsman must execute an affidavit stating the reasons why the principal is being surrendered and then gives the Court a right to require return of the bond fee or a portion thereof, or to refuse to accept the tender of the principal and a release of the bondsman from his obligation. Here again, it should be pointed out that the provisions of the Act apply to a professional bail bondsman and not to a member of the State Bar, the apparent reasons being that the lawyer is under the onus of a higher responsibility to the client than would be a professional bondsman.