98-12.

• Case Date: November 30, 1998
• Court: Kansas

Kansas Ethics Opinion 1998. 98-12. November 30, 1998KBA Legal Ethics Opinion No. 98-12November 30, 1998 TOPIC: Ancillary Businesses; Lawyer as bail bondsman DIGEST: Statutes prevent practicing attorneys from signing any bond on any legal matter within the judicial district where the attorney re-sides, regardless of whether the person seeking the bond is a client of the lawyer. The Model Rules prevent entering into a bonding arrangement with a client even if outside the statutory "district" jurisdiction. The rules do not prevent out-district bond-ing of nonclients. Nor do the rules prevent lawyers from investing in businesses that handle bail bonding, so long as the attorney does not directly handle the business affairs of the other business. This opinion does not conclude that such bonding arrangements are good business or a good idea. Date of Request: September 10, 1998 Reference: MRPC 1.6, 1.7 and 1.8. LEO 80-32 The function of the Kansas Bar Association's ethics advisory service is to respond to inquiries from Kansas-licensed lawyers concerning proposed conduct. The limitations on the service do not allow us to render an opinion regarding past conduct or the conduct of someone other than the requesting attorney. The following constitutes only the opinion of the Committee on Professional Ethics-Advisory Services, and is not in any way intended to be a guarantee of a particular result or a conclusion by appropriate authorities. Further, this document constitutes the Committee's opinion based on the facts and information contained in correspondence above referenced. It is based on a review of the disciplinary rules, model rules of professional responsibility and conduct, and applicable case law. This opinion is not a grant of immunity from any form of legal or disciplinary proceeding. The opinion herein is that of a KBA committee without official government status. The Kansas Bar Association expressly disclaims any liability in connection with issuing this opinion. FACTS Attorney wants to practice law and operate a bail bonding business out of a law firm. He asks five questions. QUESTIONS 1. May the attorney engage in the business of bail bonding while actively practicing law? 2. May the attorney advertise legal services and bail bonding at the same time and in the same ad? 3. May the attorney represent a person the attorney has written a bond on or a person on whom an employee for the same bonding company has written a bond? 4. May the attorney suggest to a bonded customer whom the attorney has bonded that the attorney would represent them, or recommend the name of another attorney that may wish to represent the bonded customer? 5. Do the rules allow delegation of authority to write bonds to another person qualified to write bonds if there is no proscription imposed by the bonding company or otherwise? ANALYSIS Given the long association of bail bonding with the criminal justice system, there is a remarkable lack of authority on this topic. We believe the answer to the first question directs our answer to the remaining four. Statutes Old Kansas statutes direct that "... [N]o state or county officers, or their deputies, shall be taken as surety on the bond of any administrator, executor or other officer from whom bond is or may be required by law. No practicing attorney shall be taken on any official bond, or bond in any legal proceedings as aforesaid, in the district in which the attorney resides." [1] In Sherman v. State, [2] it is explained that the 1867 statute had been enacted in part because lawyers were officers of the court, and the courts were not allowed to take bonds from their own officers that benefited private litigants. [3] In Hardesty v. Ball , [4] a plaintiff who was required to give an appeal bond secured such bond with his son, a practicing attorney. Defendant objected to the sufficiency of the bond solely by virtue that the surety was a practicing attorney. This was according to a prior statute (which went unexplained and uncited in Hardesty). The statute itself is not absolutely clear that an attorney cannot give a bail bond on a nonclient. But the Hardesty case applies the limitation to cost bonds in litigation for which the attorney was not practicing law but rather was a relative of a litigant. Thus the prohibition is on the status of being a practicing attorney. If sons cannot assist fathers by paying for cost bonds, we believe the case law resolves the ambiguity in favor of an absolute prohibition. We believe that even though the statute is old, it applies regarding bonds the attorney may want to issue within the judicial district where the attorney resides. Thus regarding giving bonds within the judicial...