Wednesday, June 6, 2007
Attorneys Making Bonds
In Texas, almost everyone accused of a crime is entitled to bail. In some counties, attorneys serve as their clients' bondsmen. This may be a good idea for the lawyers, but it creates a potential conflict of interest harmful to the clients.
Why?
Suppose that a client pays a lawyer to represent her and make her bond. The lawyer has two interests in the case: (1) defending the client; and (2) making sure the lawyer doesn't lose the bond.
Now suppose that the lawyer, in the course of his representation, learns something that makes him think the client might be less likely to continue to come to court. As a lawyer, he has a duty not to divulge that information (assuming that revealing it is not necessary to prevent the commission of a crime or fraud) or to use it to the client's disadvantage.
As the bondsman, however, he has a financial stake in the client continuing to come to court. This new confidential information makes him feel less secure in his bond. He has the choice of a) surrendering the bond, thereby using the information to his client's detriment; or b) not surrendering the bond, thereby putting his money at risk. A defendant who realizes this would rationally from his lawyer information that he thought might reflect poorly on his ability to continue attending court -- the exact sort of information his lawyer might need to defend him.
I know that lots of defendants want their lawyers to make their bonds as well. I wouldn't do it. I want to avoid any position in which my best interest might be contrary to my client's, and I want my clients to know it.
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2 comments:
A comparable situation exists in New York. while lawyers cannot post bond for a client, we can (and some do) take an assignment of the bail posted for their fee.
This creates an interesting quandry, since the lawyer is now a stakeholder in the client's compliane with the court's mandates. On top of that, however, the purpose of bail has just been undermined, since the client knows he's not getting it back no matter what happens and it no longer serves as an incentive to return.
Since this rarely happens unless the amount of bail is substantial (why bother for low bail?), what this really tells us is that bail is often set at amounts needlessly high and that it really has little impact on whether a defendant returns to court or not. And of course, if the defendant has to use this substantial sum of money to post bail, it's that much less available to retain defense counsel.
Save the privilege of your pen for the few select friends and family that may somehow end up needing bail. The rest of the accused are not worth it and it is a conflict IMO.
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