Can a criminal-defense lawyer lend a client the money to post a cash bond while representing the client in the case?

Plain-English summary

A lawyer representing a client charged with assault asked whether he could lend the client the money needed to post a cash bond. The opinion concluded that he could not.

The opinion reasoned that Rule 5.3(b) prohibited a lawyer from advancing or guaranteeing financial assistance to a client while representing the client in contemplated or pending litigation. The rule contained an exception for advancing the expenses of litigation, provided the client remained ultimately liable for them, but the opinion held that lending a client cash-bond money did not fall within that exception. It treated such a loan as contrary to the conflict-of-interest and solicitation policies underlying the rule: a lawyer who lends bond money gains a vested interest in seeing the client apprehended if the client flees, which sets the lawyer's personal financial interest against his professional duty to the client, and the prospect of lending bond money could be used to solicit a defendant's criminal case.

The opinion added that whether such a loan also violated G.S. §15A-541 was a question of law on which the State Bar had no authority to rule.

Currency note

This opinion was issued in 1994, before the North Carolina State Bar's adoption of the 2003 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer lend a criminal-defense client the money to post a cash bond?

A: No. The opinion concluded that Rule 5.3(b)'s bar on advancing financial assistance in pending litigation reached a bond loan, which is not a litigation expense within the rule's exception.

Q: Why isn't a bond loan treated like an advanced litigation expense?

A: The opinion held that posting bond is not an expense of the litigation. It read the exception as limited to litigation costs for which the client stays ultimately liable, and reasoned that a bond loan instead implicates the rule's conflict and solicitation concerns.

Q: What conflict did the opinion identify?

A: The opinion stated that a lawyer who lends bond money has a vested interest in the client's apprehension if the client flees, putting the lawyer's personal financial interest against his professional responsibilities to the client.

Background and rules framework

The opinion applied North Carolina's then-current Rule 5.3(b), which barred a lawyer from advancing or guaranteeing financial assistance to a client in contemplated or pending litigation, with an exception for litigation expenses for which the client remains ultimately liable. That provision corresponds to Model Rule 1.8(e). The opinion located the bar's purpose in preventing conflicts of interest and solicitation, and read the litigation-expense exception narrowly so that a cash-bond loan fell outside it.

Citations and references

Rules of Professional Conduct:

• MR 1.8 (financial assistance to a client in litigation)
• North Carolina Rule 5.3(b)

Statutes:

• N.C. Gen. Stat. §15A-541 (referenced; the opinion declined to decide whether the loan violated it)

See also

• ABA Ethics Op. 04-432: posting bail for a client
• Alaska Ethics Op. 2015-1: posting bail for a client
• CO Ethics Op. 34: advancing living expenses to a personal-injury client

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-173/

Original opinion text

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

Inquiry:

Attorney A represents Client B who is charged with assault on a female. In light of G.S. §15A-541 and Rule 5.3(b) of the Rules of Professional Conduct, may Attorney A ethically lend Client B the sum necessary for Client B to post a cash bond?

Opinion:

No. Rule 5.3(b) prohibits a lawyer from advancing or guaranteeing financial assistance to his client while representing the client in connection with contemplated or pending litigation. Although the Rule contains an exception allowing a lawyer to advance the expenses of litigation provided the client remains ultimately liable for such expenses, lending a client the funds necessary to post a cash bond does not fall within this exception and is contrary to the policies prohibiting conflicts of interest and solicitation which underlie Rule 5.3(b). A lawyer who lends a client the funds to post a bond has a vested interest in seeing that the client is apprehended if he or she flees the jurisdiction. This creates a conflict of interest for the lawyer between his professional responsibilities to his client and his personal interests. Also, there is a strong likelihood that a lawyer could solicit clients by suggesting that he is willing to lend a criminal defendant bond money in order to solicit the defendant's criminal case.

Whether lending a client the funds to post a bond is a violation of G.S. §15A-541 is a question of law upon which the State Bar has no authority to rule.