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OBA Ethics Counsel

Ethics Opinion No. 229

Adopted March 18, 1965

INQUIRY

1. Is it ethical for an attorney, who is by law prohibited to post bond for his client, to allow his wife to post bond for his client?

2. Is it ethical for an attorney to accept a fee for referring clients to a bondsman?

3. Is it ethical for an attorney to transfer property to a bondsman, allow the bondsman to post bond on the property, and then transfer it back, leaving the bond insecure?

OPINION

Since there are three questions asked, we will answer then in chronological order.

1. If the wife is acting as the attorney's agent, or he has any interest in the benefits from the fees received from the bonds, either directly or indirectly, then, of course, it is unethical, since he cannot do indirectly that which he cannot do directly.

2. The second question involves construction of Canon 6 and Canon 38 of the Professional Ethics of the Oklahoma Bar Association as adopted by the Supreme Court of the State of Oklahoma.

Canon 38 states, "A lawyer should accept no compensation, commissions, rebates or other advantages from others without the knowledge and consent of his client after full disclosure."

Canon 6 states in part, "It is unprofessional to represent conflicting interests, except by express consent of all concerned given after a full disclosure of the facts. Within the meaning of this canon, a lawyer represents conflicting interests when, in behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose."

Even though the attorney has made full disclosure to his client, he is serving two masters, a position he should seek to avoid. It is, therefore, this Committee's opinion that the acceptance of a fee from a bondsman for referring a client to the bondsman is unethical.

3. The answer to question three of the Inquiry is obvious and as propounded would constitute acts of fraud on the court. We, therefore, hold that an attorney engaged in such acts as set out in the question is guilty of unethical conduct.

In summation, we conclude that the practice referred to in Question 3 is unethical because it is unlawful; that while the practices referred to in Questions 1 and 2 could technically be brought within the letter of the law and the Canons, they are so fraught with the possibility of and the appearance of improper or unethical conduct that participation in either should be prohibited.