OBA Ethics Counsel
Ethics Opinion No. 271
Adopted January 23, 1973
A practicing attorney has requested an opinion concerning the ethical propriety of an attorney complying with the requirements and conditions of an order of a District Court which prescribes the manner in which one charged with a misdemeanor may be released to his attorney on his own recognizance. The District Court, by order, has provided that one charged with a misdemeanor may be released on his recognizance to any attorney who is a member in good standing of the Oklahoma Bar Association after such attorney executes a prescribed form.
The form prescribed is denominated "Recognizance Release". In substance, it is an application by the attorney requesting the release of the named defendant from the county jail on the defendant's recognizance and in the attorney's custody to appear for all necessary appearances in the District Court at a specified time and date. The form contains an agreement on the part of the attorney that if the defendant fails to appear at such time and place, the attorney will immediately cause his appearance or cause there to be posted an appearance bond for and on behalf of the defendant in such sum as the Court shall require. It further contains an acknowledgement on behalf of the attorney that in the event of the failure of the defendant to appear or to post such bond, the attorney will be removed from the list of attorneys with recognizance privileges by the Court.
The inquiry suggests that an attorney complying with this procedure would violate 5 O. S.1971, Section 11 which prohibits licensed attorneys, their spouses and certain others from "signing bonds as surety in any civil or criminal action ..."
In the opinion of the Committee, an attorney executing the "Recognizance Release" form submitted with the inquiry would not be executing or signing a bond as surety, within the contemplation of the statute. We view the procedure prescribed by the Court as a courtesy extended by the judiciary to licensed practitioners in good standing to procure the release of clients charged with misdemeanors if the attorney is willing either to cause the defendant's appearance or cause there to be posted an appearance bond for the defendant in such sum as the Court shall require. The privilege accorded is beneficial to both attorney and his client. The Court has attached to this privilege a condition that if the attorney who procures the release of a defendant breaches the conditions on which the release was procured, the attorney will no longer be accorded the recognizance release privileges in that Court.
We view the terms of the "Recognizance Release" form as an assurance by the attorney to the Court based upon the personal integrity of the attorney.
Unless a Court holds that the signing by an attorney of such a Recognizance Release form does constitute the attorney as a surety within the meaning of the statute, it is the view of this Committee that the statute is not violated and, accordingly, no unethical activity is involved by the attorney simply by agreeing to the terms and conditions in the form.
The Committee believes that it would be unethical for an attorney to procure the release of a defendant under this or any other "OR" procedure unless the attorney in good faith believes, and with reasonable basis for his belief, that his client will present himself to the Court at such times as may be required. A lawyer should not engage in conduct involving dishonesty, fraud, deceit or misrepresentation; nor should he engage in conduct that is prejudicial to the administration of justice. Code of Professional Responsibility DR 1_102(A)(4)(5).