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OBA Ethics Counsel

Ethics Opinion No. 270

Adopted January 23, 1973

OPINION

An attorney has questioned the ethical propriety of certain actions by attorneys under the particular "Oral Recognizance" or "Own Recognizance" system adopted by a municipal court in a city in Oklahoma. Under the procedure outlined in the inquiry, an attorney may obtain the release of a client who is a defendant in a misdemeanor case if the attorney, through a statement to the court, accepts personal responsibility for the defendant's court appearance on the date specified in the citation. This "OR" release of defendant is in lieu of defendant posting a monetary appearance bond which could be forfeited if he fails to appear on the specified date.

The particular statement of policy and procedures promulgated by the municipal court which is the subject of inquiry to the Committee, is as follows:

"To All Local Lawyers:

"Effective immediately, the following procedures will be instituted relating to the 'OR' system in the Municipal Court of the City of (X).

"In order to avail themselves of 'OR' privileges, attorneys must personally sign an 'OR' sheet at the Police Department for each defendant. The defendant or his attorney will appear on the date designated on the Citation, or make other arrangements to answer to the Citation. Such attorney will be granted a maximum of thirty (30) days from the date of the Citation to produce his client to the Court. Failure to produce the defendant, or otherwise answer the Citation within such time, will result in the temporary suspension of further 'OR' privileges to such attorney.

"Any defendant arrested upon the issuance of a Bench Warrant will not be subjected to 'OR' privileges granted to an attorney.

"In consideration for reinstatement, the attorney may pay a fine and cost of $35.00 on behalf of the defendant."

(Signed) "Judge of the Municipal Court"

In order to obtain the release of a client under the above stated procedure, the attorney must sign an "Attorney's Acknowledgement of Responsibility" in which the attorney accepts personal responsibility for appearance of the defendant and agrees to produce the defendant at the time and place of any subsequent hearing in the pending misdemeanor case.

The inquiry questions the propriety of the following actions by an attorney in connection with the "OR" procedure:

(1) The attorney tendering, in effect, a guilty plea on behalf of the client, without the client's specific authorization, by paying the defendant's fine and costs; and

(2) Payment by the attorney on behalf of such client-defendant of the fine and costs resulting from the unauthorized guilty plea in order to preserve the "OR" privilege of that attorney; and

(3) The signing of an agreement by an attorney, in order to obtain the release from jail of a client-defendant, if the agreement may subsequently invite a compromise of the attorney's professional responsibility in order to preserve the attorney's "OR" privileges for future cases.

The procedure instituted under the statement of "Policy and Procedures" as set forth above does raise two particular ethical inquiries. These relate to the procedure of (1) tendering a plea to the court on a misdemeanor charge on behalf of a defendant with whom the attorney has not consulted, such that the attorney has no authority from the client to tender the plea to the court; and (2) the payment by an attorney of a fine and court costs on behalf of a non-appearing defendant where the attorney does not expect to obtain reimbursement from the client, the payment being made principally for the purpose of preserving the attorney's "OR" privileges for future cases.

It would be clearly unethical for a lawyer to tender a guilty plea on behalf of a client for the purpose of preserving the attorney's "OR" privileges.

The Code of Professional Responsibility, EC 5_1 is as follows:

"The professional judgment of a lawyer should be exercised within the bounds of the law, solely for the benefit of his client and free of compromising influences and loyalties. Neither his personal interests, the interests of other clients, nor the desire of third persons should be permitted to dilute his loyalty to his client."

Ethical Consideration 7_7 of the Code, provides:

"In certain areas of legal representation not affecting the merits of the cause or substantially prejudicing the rights of a client, a lawyer is entitled to make decisions on his own. But otherwise the authority to make decisions is exclusively that of the client and, if made within the framework of the law, such decisions are binding on his lawyer. As typical examples in civil cases, it is for the client to decide whether he will accept a settlement offer or whether he will waive his right to plead an affirmative defense. A defense lawyer in a criminal case has the duty to advise his client fully on whether a particular plea to a charge appears to be desirable and as to the prospects of success on appeal, but it is for the client to decide what plea should be entered and whether an appeal should be taken."

Any independent action by an attorney that constitutes the entry of a guilty plea that will result in the conviction of the client upon a misdemeanor criminal charge would constitute unethical conduct by the attorney if the guilty plea is made without the knowledge and specific consent of the client.

Since the act of making a plea of guilty without the knowledge or consent of a client in order to preserve "OR" privileges is unethical conduct by the attorney, it further follows that the action of the attorney in paying the fine and court costs resulting from the unauthorized guilty plea constitutes additional unethical conduct, unless the attorney knows with reasonable certainty that the client will reimburse him for the fine and court costs.

Ethical Consideration 5_7 of the Code states (in part) the following:

"EC 5_7 The possibility of an adverse effect upon the exercise of free judgment by a lawyer on behalf of his client during litigation generally makes it undesirable for the lawyer to acquire a proprietary interest in the cause of his client or otherwise to become financially interested in the outcome of the litigation ...."

Similarly, Ethical Consideration 5_8 states as follows:

"A financial interest in the outcome of litigation also results if monetary advances are made by the lawyer to his client. Although this assistance generally is not encouraged, there are instances when it is not improper to make loans to a client. For example, the advancing or guaranteeing of payment of the costs and expenses of litigation by a lawyer may be the only way a client can enforce his cause of action, but the ultimate liability for such costs and expenses must be that of the client."

Disciplinary Rule 5_103 states:

"(A) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation he is conducting for a client, except that he may:

"(1) Acquire a lien granted by law to secure his fee or expenses.

"(2) Contract with a client for a reasonable contingent fee in a civil case.

"(B) While representing a client in connection with contemplated or pending litigation, a lawyer shall not advance or guarantee financial assistance to his client, except that a lawyer may advance or guarantee the expenses of litigation, including court costs, expenses of investigation, expenses of medical examination, and costs of obtaining and presenting evidence, provided the client remains ultimately liable for such expenses."

In view of the above rules and considerations, it is clearly unethical for an attorney to pay the fine and costs resulting from an unauthorized guilty plea which is presented on behalf of a non-appearing defendant who has been released on a misdemeanor criminal charge to the personal responsibility of the attorney. The only justification for payment of the fine and court costs by the attorney would be, as stated above, a reasonable certainty on the part of the attorney that the client-defendant will reimburse the attorney upon receipt of an invoice. The fact that the payment is made after the attorney enters an unauthorized plea of guilty would in most situations indicate that reimbursement is not expected.

The specific inquiry received by the Committee raises the further question of whether an attorney may be guilty of unethical conduct merely by obtaining the release of a client-defendant upon the personal responsibility of the attorney in lieu of a surety bond. Such general condemnation of the "OR" procedure would be grounded on the premise that the attorney knows that his further rights to "OR" privileges will be forfeited if the client does not appear on the specified date unless the attorney does enter an unauthorized plea of guilty and pay the fines and costs, plus the presumption that the attorney does intend to commit the unethical acts discussed above if the client does in fact fail to appear on the answer date.

Every attorney is charged with recognition of the high degree of professional responsibility he accepts when he obtains the release of a client charged in a criminal case upon the attorney's personal agreement to be responsible for the appearance of the client at some future date. An attorney does not fulfill that responsibility if he obtains the release of a defendant under the "OR" system if the attorney is not acquainted with the client and has no assurance that the client will in fact reappear on the specified date. This Committee will not assume that attorneys in this State do not recognize their professional responsibility to the court when they utilize "OR" privileges, and therefore we refrain from a determination that such procedures are unethical merely because the ultimate failure of a client to reappear may put the attorney in the compromising position of either committing unethical acts, as specified above, or forfeiting his future "OR" privileges. In view of the determination above that the entry of the guilty plea without consent of the client and the payment of the fine and court costs on behalf of the client would constitute unethical conduct, it is the opinion of the Legal Ethics Committee that attorneys must always be fully cognizant that they run the risk of forfeiting their "OR" privileges each time they utilize such privileges in order to gain the release of a client. It must be concluded that the forfeiture of "OR" privileges when a defendant-client fails to appear is the only acceptable alternative available to the attorney, since any other unauthorized action on behalf of that client will constitute unethical conduct.