Sunday, August 23, 2015

Is it improper to post bail for a client? Alaska Bar Association says not always.

According to the rules in most jurisdictions (based on Model Rule 1.8), it is improper for attorneys to provide financial assistance to clients in litigation other than providing advances on litigation costs.  Is posting bail the equivalent of financial assistance or the equivalent of litigation costs? 

I think bail should not be considered a "litigation cost" and that, therefore, it would be improper for an attorney to post bail for a client.  As explained in a recent ethics opinion from the Alaska Bar Association, "[p]osting bail for a client imposes on the lawyer both contractual and financial constraints which could give rise to a situation in which the lawyer’s interests are materially adverse to the client’s, particularly if the client fails to comply with his or her conditions of release."  Thus, by posting bail, the attorney would be creating a conflict of interest.

However, the same ethics opinion goes on to state that in rare circumstances, attorneys should be allowed to post bail.  The opinion does not go into what those rare circumstances might be other than stating that "a lawyer may post bail for a client where the amount of bail is insignificant enough to not create a material limitation on the lawyer’s ability to represent the client."

I understand the sentiment, but personally I would prefer a more bright line rule. If you think about it, the question presented was whether posting bail creates an impermissible conflict.  In the end, what the opinion seems to say is that posting bail generally creates a conflict, but if it is not an impermissible conflict then it is okay.  This means that when the question arises someone will still have to determine if the conduct creates an impermissible conflict. 

You can read the full opinion (which is very short) here or in the Legal Profession Blog.

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