I can attest from my own practice experience that routine bail amounts disparately impact poor and low-income defendants: enormous pressure to plead guilty to get out of jail, lost jobs, housing, and education opportunities, limited ability to prepare for trial, and many other adversities resulting from some defendants' inability to post bail as low as $250. Nevertheless, as this New York Law Journal article explains, I always understood the best practice, if not the rule, to be that lawyers don't post bail for their clients. Too many risks for conflicts of interest, see ABA Model Rule 1.7, and a potentially problematic financial assistance to clients. See ABA Model Rule 1.8(e). Some state bar associations thus have opined negatively on lawyers posting bail for clients. See e.g., N.C. Bar Op'n 173 (1994) (prohibiting lawyers from posting bail for clients); Oregon Bar Op'n 04-431 (discouraging lawyers from posting bail for clients). Some state statutes also prohibit lawyers from posting bail for clients from personal funds. See Wisc. Stat. § 757.34; Mich. C.L. 600.2665; cf. also N.C. G.S. 15A-541(a). See generally D. Markowitz, The Attorney's Query: May a Lawyer Ethically Post a Bond or Serve as a Surety on Behalf of a Client?, 18 Geo. J. L. Ethics 959 (2005).
Public Defender Offices in the Bronx and Brooklyn, however, recently have experimented with formal bail programs for clients, particularly since the New York State Legislature relieved non-profits from bail-bond licensing requirements. Rather than post bail directly for clients, these offices have created bail assistance funds, which are supported by outside donations and administered by separate entities. Some details of these programs "are still being settled," and the programs still could present some ethical questions. For instance, lawyers conceivably could retain a role in individual client bail assistance requests, or in setting the criteria by which bail is paid or pursued if forfeited. Lawyers even could argue or resource a case differently if a client supported by this fund risks bail forfeiture. Yet, these programs represent an interesting and creative effort to deal with a frustrating situation for lawyers who represent clients who can't post routine bail amounts simply because they are too poor.
Brooks, Welcome, and thanks for this post. It's an extremely important program.
Please explain the ways in which the program might affect the way defense lawyers represent their clients.
Posted by: Monroe Freedman | August 23, 2012 at 09:10 AM
Hi Monroe: Many thanks for the welcome. Just noticed your response—apparently we aren't notified by email when someone comments?
Having represented hundreds of clients in this situation, I agree that this program is very important. Hard to predict how the program might affect lawyer representation negatively without all the details on the program. I suspect not much, though, with thoughtful lawyers like Robin Steinberg structuring the program and any training to avoid likely problems.
Yet, any time money for which the lawyer is responsible in some way—directly or indirectly—enters the attorney-client relationship, decision-making can be affected, no? Even if the bail money comes from a discrete fund from the public defender office's operating budget, some relationship still seems to exist between the office and the fund—the office established the fund for its own clients’ use. I assume lawyers will not be able to send all clients to this fund for bail money. Therefore, I wonder, who will decide the criteria for referring clients to the fund, what will these criteria be, and how much discretion and control will individual lawyers retain to refer or not refer under these criteria? If some discretion exists, will lawyers feel pressure, expressly or implicitly, to protect the fund against a high forfeiture rate or bad outcomes, so fund donors won't flee the fund and public defenders can report high return rates and good dispositions, as we see in this article? Confidential information available to the lawyer could influence lawyer judgments about which clients will "succeed" according to whatever the program's criteria are.
Just some off-the-top-of-my-head questions, more than assertions. But with the limited resources and time that public defenders often have for their entire client base, these lawyers frequently must triage. Still, this triage should reflect the lawyer's independent judgment of how to pursue each individual client's objectives competently and diligently. Client access to bail is critical to this process, for sure. But, if lawyers have any interest in making a financial program outside of that representation look "successful," lawyers could triage differently when arguing for bail, counseling clients, negotiating dispositions, or litigating against bail forfeitures. I suppose the key is truly to separate that bail fund money from individual lawyer-client relationships.
Posted by: Brooks Holland | August 31, 2012 at 02:32 PM