Formal Opinion 33.
Posting Bail for Others
(1954)

You have submitted to the Committee on Legal Ethics the following questions:

1. May an attorney post cash or his own check, in lieu of bail, for one charged with a criminal offense.

The prohibition against an attorney at law being a surety upon a bond is contained in R.C.W. 19.72.020; R.R.S. 958-1. This section provides that whenever any bond is required or permitted to be given, and to be signed by one or more persons as sureties, each of the sureties must be a resident of the state. The section further provides "No attorney at law, sheriff, clerk of any court of record, or other officer of such court, shall become such surety."

It is the opinion of the Committee that such prohibition does not prevent an attorney from posting cash bail for one accused of a criminal offense, or loaning the one charged, money to be posted in lieu of a bond and giving his own check therefor. If the court or clerk thereof is willing to accept the attorney's check, we do not know of any section of the statute that forbids an attorney from so doing. Section 42 of the Canons of Professional Ethics, in Washington Reports 34A, Second Series, provides:

"A lawyer may not properly agree with a client that the lawyer shall pay or bear the expenses of litigation; he may in good faith advance expenses as a matter of convenience, but subject to reimbursement."

Section 29 of the Canons of Professional Ethics, among other things provides:

"He (a lawyer) should strive at all times to uphold the honor and to maintain the dignity of the profession and to improve not only the law but the administration of justice."

2. You ask whether an attorney can put up bail generally for ones accused of criminal offenses, the lawyer to be paid compensation therefor. There may be nothing preventing one who is a lawyer qualifying as a person who is a compensated surety, but it is our opinion that it is so difficult to distinguish between the acts of one person as an attorney and as an individual separated from his profession as an attorney at law, that we do not feel within the spirit of the above statute and the general ethical requirements rightfully imposed upon an attorney at law, that he should attempt to furnish cash bail for persons accused of crime and make a specific charge therefor.

3. You say that your city has an ordinance requiring bail bondsmen to secure a license. You ask whether it would be proper for an attorney to obtain a license as a bondsman and have his name posted on the list of licensed bail bondsmen in the janitor's quarters of a jail.

It is the opinion of the Committee that it would not be proper for an attorney to do so. The tenor of the statute prevents an attorney from becoming a bondsman. The purpose of such a posting would be to advertise a given attorney as one who is willing to furnish bail. We believe that such action would be unethical.

Section 27 of the Canon of Professional Ethics deals with advertising, direct or indirect, and strives to limit into very narrow confines the ways by which a lawyer can, with propriety and his own acts, bring his name before the public for the purpose of making business and professional contacts.

4. You ask whether this situation would be altered should the attorney represent the defendant as an attorney.

It is our opinion that it would not be altered except insofar as we have answered your question No. 1.