Ethics and the Law: Bad Apples in Every Barrel

/

Make sure when you get a new case it is done in an ethical manner. Since the beginning of time, some lawyers have been dishonest. There are bad apples in every barrel. We must all pay attention and not violate the rules.

Lawyers run deceptive ads, pay case runners, lie, and use other crooked methods to get cases. Lawyers have been caught taking stolen property, narcotics, and illegal proceeds just to get paid. Some get caught, some don’t. Lawyers have bragged they are golfing buddies, tennis buddies, and party buddies to get cases. They have been known to say “I’m the only lawyer who can get this done.” And some lawyers have an unethical deal with bail bondsmen. Attached is co-chair Chuck Lanehart’s article on the subject.

“Never Get in Bed with a Bail Bondsman”
by Chuck Lanehart

Early in my career, the great Lubbock lawyer Byron Chappell1 advised, “Never get in bed with a bail bondsman.” Most of the bail bondsmen I’d met were crusty, toothless old bastards with beer bellies, so I could not imagine why Lawyer Chappell would think I’d consider a sexual relationship with such a person. But I soon learned the meaning of my mentor’s metaphor.

I learned that the term “bail bond whore” describes an attorney whose practice depends largely on referrals from bail bondsmen. Byron believed bail bond whores joined plea bargain lawyers, penitentiary agents, and V-6 lawyers2 to threaten the reputation and livelihood of the stand-up, ethical-but-zealous criminal defense bar. (And he called every surety a “two-bit bondsman.”)

From the time some two-bit bondsman first collected a fee to spring some poor soul from the local lockup, unscrupulous lawyers everywhere have been known to pay kickbacks to sureties for referring clients. Not only will this shady dealing get you summoned to appear before the local grievance committee; it will get you hauled to the hoosegow. The practice is condemned by Rule 7.03(b) of the Texas Disciplinary Rules of Professional Conduct (TDRPC), which provides, “A lawyer shall not pay, give, or offer to pay or give anything of value to a person not licensed to practice law for soliciting prospective clients for, or referring clients or prospective clients to, any lawyer or firm . . .”

The Barratry Statute, Section 38.12 of the Texas Penal Code, makes lawyer kickbacks to bail bondsmen (or others) a third-degree felony crime, punishable by up to ten years in prison:

(a) A person commits an offense if, with intent to obtain an economic benefit the person:
. . .
(2) solicits employment, either in person or by telephone, for himself or for another;
. . .
(4) pays or gives or offers to pay or give a person money or anything of value to solicit employment; [or] . . .
(6) accepts or agrees to accept money or any­thing of value to solicit employment.

The more common “tit for tat” practice of a lawyer referring clients to bail bondsmen with the expectation the surety will return the favor is also illegal in Texas. The Texas Occupations Code, which regulates bail bond sureties, prohibits a bondsman from recommending an attorney or law firm to the surety’s client:

Sec. 1704.304. PROHIBITED RECOMMENDATIONS OR SOLICITATIONS; OFFENSE. (a) A bail bond surety or an agent of a bail bond surety may not recommend or suggest to a person for whom the bail bond surety executes a bond the employment of an attorney or law firm in connection with a criminal offense.
. . .
(e) A person commits an offense if the person violates this section. An offense under this section is a Class B misdemeanor.

Further, a Texas Attorney General’s opinion interprets section 1704.304(a) to prohibit a bail bond surety from recommending any lawyer or law firm, either in­di­vidually or by including the attorney or law firm in a selected list.3 An attorney who knowingly accepts such an arrangement also violates Sec. 1704.304(a), as a party to the offense.4

So, is there a way to get around all these rules for an enterprising lawyer who, say, wants to open his own bail bond business? Nope. That’s been on the no-no list for a long time. A 1957 ethics opinion interpreted Canon 24 of the old Texas Canons of Ethics, which were replaced by the current TDRPC. It is an ethical violation for an attorney who practices criminal law “to engage in the business of making bail or other bonds in criminal cases, whether he makes such bonds under his own name or an assumed name, or to be in any way connected with, or have any interest in, any company which is engaged in the business of making bail or other bonds in criminal cases, regardless of where such company maintains its office, and regardless of whether it advertises its business.”5

What about a lawyer making bail for his own client? Under the Texas Canons of Ethics, it was not unethical for an attorney to habitually engage in the practice of making bail bonds in criminal cases, if the attorney-client relationship existed at the time the attorney signed the bond.6 However, once such bail is posted, it is unethical under the TDRPC for the attorney to surrender the client’s bond, unless the attorney knows that the “client is planning to commit a crime, a fraud, or is about to refuse to comply with the terms of the bond.”7

There’s another situation involving attorneys who make bail for clients that has been addressed by the Texas Commission on Professional Ethics.8 The law allows an attorney to enter a plea of guilty or no contest on behalf of a client in Class C misdemeanor cases in justice court or in municipal court.9 May a lawyer who serves as bail bondsman for his client add to the court’s form of bond a provision in which the client agrees that, if the client fails to appear in court, the attorney is authorized to enter a “no contest” plea that will result in a fine and may result in the issuance of a warrant for the client’s arrest? Such an arrangement—in violation of Rule 1.02, Rule 1.06, and Rule 1.08—“is a prohibited business transaction between lawyer and client that is not on terms fair and reasonable to the client, creates an impermissible conflict of interest for the lawyer, and impermissibly purports to eliminate the lawyer’s duty to consult with, and abide by the decision of, the client concerning the entry of a plea.”10

In a similar scenario, it is okay for a lawyer to include in his contract a provision calling for the client’s agreement, in advance, that the lawyer may enter a plea of “no contest” or “guilty” on the client’s behalf for Class C misdemeanor in municipal court, even if the attorney is on the client’s bond. The lawyer must be careful to make sure the client is able to make an informed decision about the plea, and there must be no significant likelihood that the client will have an opportunity to defend the case.11

So, what would Lawyer Chappell do? He would try to find a way to avoid using bail bonds altogether to extricate his client from jail, because “There are many ways to skin this cat.” A magistrate has the au­thor­ity to authorize a cash bond12 or a personal bond,13 so what’s the harm in asking? Or, Lawyer Chappell might file a writ of habeas corpus under Texas Code of Criminal Procedure Article 11.01 et seq. If the state is unable to establish probable cause after a hearing on the writ, the client must be released. If all else failed, Lawyer Chappell might negotiate the lowest possible fee and hire a “two-bit bondsman,” but you can bet he would never get in bed with the bail bondsman.

Footnotes

  1. For more of Byron Chappell’s wit and wisdom, see “The Lawyer Chappell Method of Making Money” in the July/August 2008 issue of Voice for the Defense.
  2. A “V-6 lawyer” is a walking violation of the Sixth Amendment right to effective assistance of counsel.
  3. Texas Attorney General Opinion GA-0089 (2003).
  4. Texas Penal Code, Chapter 7.
  5. Tex. Comm. on Prof’l Ethics, Op. 141, March 1957.
  6. Tex. Comm. on Prof’l Ethics, Op. 347, August 1969.
  7. Tex. Comm. on Prof’l Ethics, Op. 388, February 1977.
  8. The Supreme Court of Texas appoints the nine members of the Professional Ethics Committee from members of the bar and the judiciary. The court also appoints the committee’s chair. According to Section 81.092(c) of the Texas Government Code, “Committee opinions are not binding on the supreme court.”
  9. Tex. Code of Criminal Procedure, Article 33.03.
  10. Tex. Comm. on Prof’l Ethics, Op. 599, July 2010.
  11. Tex. Comm. on Prof’l Ethics, Op. 624, February 2013.
  12. Tex. Code of Criminal Procedure, Article 17.02.
  13. Tex. Code of Criminal Procedure, Article 17.03.
TCDLA
TCDLA
Robert Pelton
Robert Pelton
Robert Pelton is the former President of the Harris County Criminal Lawyers Association (HCCLA), Associate Director for TCDLA, and Feature Articles Editor of the Voice, as well as serving as editor and assistant editor of Docket Call. Among his many honors, Robert was named by H Texas magazine as one of the top criminal lawyers in Harris County (2004–2010) and one of Houston’s Top Lawyers for the People in criminal law (2004–2010), and he is listed in the Martindale Hubbell Bar Register of Preeminent Lawyers. Robert has offices in Abilene and Houston.
Previous Story

Ethics and the Law: Loose Lips Sink Ships

Next Story

Ethics and the Law: No Man Is an Island

Latest from Columns