Can a criminal defense lawyer take an assignment of the client's cash bond to cover the fee?

Plain-English summary

A lawyer asked whether an attorney handling a criminal defense could accept, as part of his fee, an assignment of the cash bond the client had posted, then put the court on notice of the assignment so that if the bond were released it would be forwarded directly to the attorney.

The committee began from the rule that contingent fees in criminal cases are forbidden under DR 2-106(C). It found no objection to the assignment provided the fee was fixed and reasonable. The committee cautioned that accepting the assignment of the bond as part of the fee was not permissible, because the result would be a contingent fee; if the fixed fee was merely secured by the assignment, the transaction was valid and ethical. Put another way, the obligation to pay the fee, and its amount, had to be continuing even if the bail bond were forfeited.

Currency note

This opinion was issued in 1971, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Code of Professional Responsibility (DR 2-106(C)), the subject matter of which is now addressed by Rule 4-1.5, including its bar on contingent fees in criminal cases. Treat this page as historical context, not current guidance. Verify against current Rule 4-1.5 before relying on any specific requirement mentioned here.

Common questions

Q: Can a criminal defense lawyer take an assignment of the client's cash bond?

A: Under this opinion, yes, as security for a fixed and reasonable fee. The committee found no objection where the fee is fixed and the bond merely secures payment.

Q: Why can't the bond itself be the fee?

A: The opinion explains that taking the bond as the fee would make the fee contingent on the bond's release, and contingent fees in criminal cases are forbidden under DR 2-106(C).

Q: How does the committee draw the line?

A: The opinion says the obligation to pay the fee, and its amount, must be continuing even if the bail bond is forfeited; if the fixed fee is purely secured by the assignment, the transaction is valid and ethical.

Background and rules framework

The opinion applied DR 2-106(C) of the former Code, which prohibited contingent fees in criminal cases. That prohibition is carried forward in Rule 4-1.5, which governs fees and bars contingent fees in criminal matters. The Model Rule analogue is Rule 1.5.

Citations and references

Rules of Professional Conduct:

• DR 2-106(C) [Code of Professional Responsibility; subject matter now in Rule 4-1.5]

See also

• FL Bar Ethics Op. 80-5: Refundable Fee in a Criminal Case
• FL Bar Ethics Op. 87-3: Contingent Fee on Court-Awarded Fees
• FL Bar Ethics Op. 71-57: Keeping a File Until Costs Are Paid

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-71-19/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-71-19-1.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

FLORIDA BAR ETHICS OPINION
OPINION 71-19
June 21, 1971
Advisory ethics opinions are not binding.
A criminal defense attorney may accept assignment of his client's cash bond as security for a fixed fee. He may not accept the assignment as part of the fee because the result would be a prohibited contingent fee.
CPR: DR 2-106(C)
Chairman Massey stated the opinion of the committee:
A member of the Bar asks if it is ethical for an attorney handling a criminal defense to accept as part of his fee an assignment from his client of the cash bond posted by the client and then placing the court on notice of the assignment so that in the event the bond is released it would be forwarded directly to the attorney.
Contingent fees in criminal cases are forbidden. DR 2-106(C). However, assuming the amount of fee is fixed and is reasonable, there is no objection to the proposed assignment. The inquirer should be very careful in that to accept the assignment of the bond as part of the fee is not permissible since the result is a contingent fee. If the fixed fee is purely secured by an assignment, then it is a valid and ethical transaction. To put it another way, the obligation for fee payment and the amount thereof must be continuing even if the bail bond is forfeited.