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.