Advancing Funds to Client to Post Bond
Adopted: April 15, 1994
Opinion rules that a lawyer who represents a client on a criminal charge may not lend the client the money necessary to post bond.
Inquiry:
Attorney A represents Client B who is charged with assault on a female. In light of G.S. §15A-541 and Rule 5.3(b) of the Rules of Professional Conduct, may Attorney A ethically lend Client B the sum necessary for Client B to post a cash bond?
Opinion:
No. Rule 5.3(b) prohibits a lawyer from advancing or guaranteeing financial assistance to his client while representing the client in connection with contemplated or pending litigation. Although the Rule contains an exception allowing a lawyer to advance the expenses of litigation provided the client remains ultimately liable for such expenses, lending a client the funds necessary to post a cash bond does not fall within this exception and is contrary to the policies prohibiting conflicts of interest and solicitation which underlie Rule 5.3(b). A lawyer who lends a client the funds to post a bond has a vested interest in seeing that the client is apprehended if he or she flees the jurisdiction. This creates a conflict of interest for the lawyer between his professional responsibilities to his client and his personal interests. Also, there is a strong likelihood that a lawyer could solicit clients by suggesting that he is willing to lend a criminal defendant bond money in order to solicit the defendant's criminal case.
Whether lending a client the funds to post a bond is a violation of G.S. §15A-541 is a question of law upon which the State Bar has no authority to rule.