Can a lawyer be hired by a bail bonding company to represent a criminal defendant and negotiate a plea?

Plain-English summary

The committee was asked whether a lawyer could be retained by a bonding company to represent a defendant in a criminal action for the purpose of entering a plea and negotiating a penalty. The answer was no.

The committee found the question plainly disposed of by DR 2-103(D), which provides that a lawyer "shall not knowingly assist a person or organization that recommends, furnishes, or pays for legal services to promote the use of his services or those of his partners or associates." A few exceptions were set out in the rule, but bonding companies were not among them. The committee added that the same answer applied whether or not the defendant specifically authorized the bonding company to hire the lawyer, and whether or not the defendant wished to appear for trial.

Currency note

This opinion was issued in 1975 under Kentucky's former Code of Professional Responsibility (in effect 1971 to 1990), before the Kentucky Bar Association's 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could a bonding company hire a lawyer to handle a defendant's plea?

A: No. The committee held DR 2-103(D) bars a lawyer from knowingly assisting an organization that recommends, furnishes, or pays for legal services to promote the lawyer's services, and bonding companies are not among the exceptions.

Q: Did it matter if the defendant authorized the bonding company to hire the lawyer?

A: No. The committee said the same answer applied whether or not the defendant authorized the hiring, and whether or not the defendant wished to appear for trial.

Background and rules framework

The opinion applied DR 2-103(D) of the former Code, which limited a lawyer's participation with organizations that recommend, furnish, or pay for legal services. The modern analogs are Model Rule 1.8(f) (compensation from someone other than the client, requiring the client's informed consent and no interference with the lawyer's independence) and Model Rule 7.2 (limits on giving anything of value for recommending the lawyer's services).

Citations and references

Rules of Professional Conduct:

• DR 2-103(D) (organizations that recommend, furnish, or pay for legal services); modern analogs Model Rules 1.8(f) and 7.2

See also

• KBA Ethics Op. E-123: Lawyer Part-Time Claims Adjusting
• KBA Ethics Op. E-147: Lender-Referred Title Work

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-125.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-125
Issued: September 1975

This opinion was decided under the Code of Professional Responsibility, which was in effect from 1971 to 1990. Lawyers should consult the current version of the Rules of Professional Conduct and Comments, SCR 3.130 (available at http://www.kybar.org), especially Rules 7.01-7.50 and the Attorneys' Advertising Commission Regulations, before relying on this opinion.

Question:

May a lawyer be retained by a bonding company to represent a defendant in a criminal action for the purpose of entering a plea and negotiating a penalty?

Answer:

No.

References:

DR 2-103(D)

OPINION

This question is plainly disposed of by DR 2-103(D), which provides that "[a] lawyer shall not knowingly assist a person or organization that recommends, furnishes, or pays for legal services to promote the use of his services or those of his partners or associates." A few exceptions are set out, but bonding companies are not among them.

The same answer applies whether the defendant does or does not specifically authorize the bonding company to hire the lawyer, whether the defendant does or does not wish to appear for trial.

Note to Reader

This ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor rule). The Rule provides that formal opinions are advisory only.