April 12, 2012 /By Olumide K. Obayemi*
CAN AN ATTORNEY ETHICALLY PUT UP THE PAYMENTS/SECURITY/BOND TO COVER HIS CLIENT’S BAIL IN CRIMINAL PROCEEDINGS?
For those of us who grew up in 1980’s, under the military rule of Generals Buhari and Babangida from 1983 to 1993 would quickly remember Decree 4, a law meant to prevent any form of embarrassment to/of the military government. The Public Officers (Protection Against False Accusation) Decree No 4 of 1984. It protected public officers from publications of not only what is untrue but (also) what is true about them.
This was the case in 1984 when Tunde Thompson and Nduka Irabor, both of The Guardian were arrested and charged for publishing facts regarded by government as official secrets. Despite the brilliant argument by their lawyer, Chief Rotimi Williams as to the validity of their action, the government was not convinced and they were jailed for one year at Kirikiri. As soon as the court later set Irabor and Thompson free with the newspaper—The Guardian being fined fifty thousand naira, several persons, among them lawyers, paid the fine at the court premises and Irabor and Thompson went home free
The question for this paper is: whether it was ethical for these lawyers to advance payment to secure bail for their clients’ release from jail? This is against the background that an attorney can only advance reasonable costs in prosecuting his client’s case and can not maintain financial interests that are adverse to the clients.
In the above scenario of Irabor and Thompson, because many people were against the draconian decree—Decree No. 4, it would be easy to justify the lawyers paying the bond for the release.
However, where the client is criminally accused of committing a very heinous crime, and, at the same time, this suspect is a ravishing and delectable blue-eyed blond lady with perfect set of teeth and with the right physical endowment, there is a need to soft-pedal.
This wok proposes that payment of bond/bail money is not a reasonable litigation cost and he lawyer must never put himself in a compromising position. Advancing bail money may psychologically put the attorney in a position where the attorney thinks of his investment over and above the client’s interest
CURRENT STATUTORY RULES OF ETHICS.
According to the American Bar Association, in a 2004 opinion (04-432), a lawyer can post bond to secure the release of a client,
"but only in those rare circumstances in which there is no significant risk that her representation of the client will be materially limited by her personal interest in recovering the amount advanced."
Also, the American Bar Association has stated that under Rule 1.7, unless the asset at risk is "inconsequential to the lawyer, there will be significant risk that this personal interest will materially limit her ability to exercise her independent professional judgment on the client's behalf"—meaning that, "in most cases" a lawyer would be barred from continuing to represent a client for whom he has advanced bail.
Several states have explicitly barred lawyers from bailing out their clients, including Wisconsin (Opinion E-96-1, 1996); North Carolina (State Bar Opinion 173, 1994); and Michigan (Opinion RI-65, 1990). The issue was raised in a directly on-point 2004 opinion from the Oregon state bar (04-431). The Oregon opinion says that even though there is "no categorical prohibition" against a lawyer posting a client's bail, "in most situations, the risk is too great that the lawyer's representation will be materially limited by the lawyers personal interest in being repaid."
New York State Bar Association has not addressed the issue directly. The closest it appears to have come is with a 1993 opinion (Opinion 647) in which the state bar said an attorney can ethically act as a bail bond agent, but not for a client.
A similar issue arose in the Bronx in 2009, when the prosecution objected to bail that was to be provided by a group with ties to a defense association. In People v. Miranda, 24 Misc. 3d 1223A, Acting Supreme Court Justice Ralph Fabrizio said there was no controlling New York authority on whether attorneys can provide bail for their clients:
"The ethical question…is the subject of continuing debate, and is far from settled,…"[S]ince there is no clear legal precedent covering the unique and limited facts revealed in this bail hearing, this Court cannot issue a ruling on the ethical question raised by the People."
According to Roy D. Simon, retired professor of legal ethics at Hofstra University School of Law, attorneys are permitted to advance litigation expenses, but they cannot take over such personal expenses as car loans or mortgage payments on behalf of a client. Yet, Mr. Simon said it is unclear whether bail is a litigation expense.
To Anthony E. Davis, a partner at Hinshaw & Culbertson, a Law Journal columnist and a past president of the Association of Professional Responsibility Lawyers, the above Oregon opinion "accurately summarizes the problem in New York as well as Oregon." But Mr. Davis also noted that it is clear that in New York a lawyer generally may not give financial assistance to a client, but is permitted to cover court costs even when recovery of those funds are contingent on the outcome of the case:
"It is not explicit, it is not clear and the rule does not specifically cover or not cover whether bail is an expense".
Laurie Shanks, a partner in Kindlon & Shanks in Albany and a professor at Albany Law School, said posting bail for a client is a recipe for disaster, whether it is barred or not. Thus, Ms. Shanks wonders what would happen if, for example, a client was bailed out by one attorney and then decided to retain a different attorney, and the original lawyer withdrew the bail. Further, she questions what an attorney on the financial hook would do if he heard through the grapevine that the client was planning to flee.
While a lawyer may advance the expenses of litigation, where, provided the client remains ultimately liable for such expenses, it is clear that lending a client the funds necessary to post a cash bond is contrary to the policies prohibiting conflicts of interest and solicitation. A lawyer who lends a client the funds to post a bond has a vested interest in seeing that the client is apprehended if he or she flees the jurisdiction. Also, this creates a conflict of interest for the lawyer between his professional responsibilities to his client and his personal interests. Further, there is a strong likelihood that a lawyer could solicit clients by suggesting that he is willing to lend a criminal defendant bond money in order to solicit the defendant's criminal case.
Olumide K. Obayemi is from Ijebu-Jesa, Osun State, Nigeria E-mail: firstname.lastname@example.org