OBA Ethics Counsel
Ethics Opinion No. 36
October 28, 1932
1. Attorneys - Unprofessional Conduct - Bond Brokerage.
The practice of a member of the bar of furnishing his wife as a surety on appearance bonds of his clients charged with crime, condemned.
The Board of Governors is in receipt of the following letter from one of the county attorneys of the State:
"One .......... stands charged in the District Court of .......... County, Oklahoma, in two cases Nos. .... and .... with the crime of larceny of an automobile in each case. One .........., an attorney at ..... appears as attorney of record for this defendant.
On September 15, 1932, the attorney appeared before the Court Clerk with Appearance Bonds in each of these cases with a surety by the name of .........., his wife, and procured this defendant's release, his wife being the principal surety and on whose signature and property the clerk relied upon in approving the bonds. It appears from the letters of recommendation from the Court Clerk, County Clerk, and County Attorney of .......... County that accompanied the bonds that this attorney and surety has done this on many occasions. I am sure that it can also be established by the jailor of the County that this attorney obtained over $100.00 either for making this bond on this same date or as a partial attorney fee.
Will you please inform me if this attorney can be handled by the bar commission or if this transaction will meet with approval with the bar commission under its rules and regulations?
These facts will show of record in the numbered cases above in this Court. It just occurred to me that this procedure was not quite ethical for this attorney and I desired that your commission be informed of these facts to take such action as the rules and regulations of the Bar Commission deemed advisable and legal."
The conduct of the member of the bar in question is disapproved of as in violation of Rule of Professional Conduct No. 31, which provides that a member of the bar "should strive at all times to uphold the honor and to maintain the dignity of the profession." The State Bar Act (Sec. 29) provides that a breach of a rule of professional conduct shall be punished by suspension from the practice of law for a period not to exceed one year.
If his wife, in signing the bonds in question, is acting as the attorney's alter ego, the attorney's conduct in the premises is within the prohibitory spirit of Section 4110, C.O.S.1921, 5 Okl.St.Ann. § 11 which provides:
"Licensed attorneys of this State are prohibited from signing any bonds as surety in any * * * criminal case in which they may be employed as counselors * * * All such bonds shall be absolutely void, and no penalty can be recovered of the attorney signing the same."
A lawyer's conduct should conform with ideals which are measured by higher standards than merely that his conduct does not come within the narrow letter of law.
If the member of the bar is engaged in the lay business of obtaining bonds signed by his wife as a bond broker, without compensation as a bond broker, his conduct cannot be approved because it is too susceptible of construction as a form of solicitation of legal business. If he is engaged in the lay business of furnishing bonds for his clients, signed by his wife, for compensation as a bond broker, his conduct is disapproved as having a tendency to lower the dignity of the profession in that he combines his lay business with his law practice in such a way as to obtain business as bond broker because he is a lawyer, or to obtain business as a lawyer because he is engaged in the lay business of furnishing bonds signed by his wife. This sort of combination of lay business with the practice of law has been condemned by the Committee of Professional Ethics of the New York County Lawyers Association in answer to question 114, wherein it held that, though a lawyer is not prohibited by any accepted standards from engaging in a lay business while practicing law, he must conduct such lay business with due observance of the standards of conduct required of him as a lawyer; and that in conducting such lay business, he must not use it as a means of obtaining law business, nor must he use the fact that he is a member of the bar as a means to obtain lay business.
Note to Opinion 36. Cited with approval in Opinion 67.