Can a lawyer act as a bail bond agent or own an interest in a bail bond agency that sells bonds to the lawyer's clients?

Plain-English summary

A lawyer asked whether he could act as a bail bond agent, or hold a shareholder interest in an insurance agency selling bail bonds, with respect to (1) clients and (2) non-clients. The committee noted that Insurance Law section 6804(c) makes it a misdemeanor for a member of the bar to profit from giving bail, but that interpreting the statute is a question of law outside its jurisdiction; it cited a 1945 Attorney General opinion reading the comparable language to bar only compensation beyond an agent's ordinary commission. The committee therefore answered on the assumption that no legal impediment exists.

On that assumption, the committee reasoned that a lawyer may participate in an independent business if no conflict of interest results, and that receiving ordinary commissions on bond sales to non-clients poses only a remote conflict. It cautioned that the bail bond agency may not be used to solicit clients for the law practice (Judiciary Law 479; DR 2-103), though whether particular conduct is improper solicitation is a question of law.

For clients, the committee found the conflict could not be resolved. Even with the full disclosure permitted in other ancillary-business contexts, the vulnerability of an accused person means disclosure ordinarily will not obviate the conflict: the lawyer's interest may be to protect the insurer by assuring the defendant appears at trial, even though the defendant's whereabouts may be a secret, and the accused ordinarily cannot give informed consent. The committee added that a lawyer who personally advances funds for bail or bail premiums creates a conflict under DR 5-103(B)(1). It answered the first question (clients) in the negative and the second (non-clients) in the affirmative, so long as the lawyer does not represent the person for whom the bond is posted.

Currency note

This opinion was issued in 1993, under New York's former Code of Professional Responsibility, which New York replaced with the Rules of Professional Conduct in 2009. The provisions on conflicts and on ancillary businesses have since been revised. 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 Treat this page as historical context, not current guidance.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 earn commissions selling bail bonds?

A: Under this opinion, yes, for non-clients, assuming no legal bar, because receiving ordinary commissions on bonds for non-clients poses only a remote conflict.

Q: Can a lawyer be the bail bond agent for the lawyer's own client?

A: No. The committee concluded the conflict cannot be cured by consent, because an accused person is too vulnerable to give informed consent and the lawyer's interest may diverge from the client's.

Q: Can the lawyer use the bail bond agency to find law clients?

A: No. The committee said the agency may not be used to solicit clients for the law practice, citing Judiciary Law 479 and DR 2-103.

Background and rules framework

The opinion interpreted DR 1-102 (misconduct, including illegal conduct), DR 2-103 (solicitation), and DR 5-103(B)(1) (advancing funds to a client) of New York's former Code, against the backdrop of Insurance Law section 6804(c). The closest Model Rule analogues are Rule 1.7 (conflicts, including personal-interest conflicts) and Rule 1.8 (business dealings adverse to a client). New York replaced the Code with the Rules of Professional Conduct in 2009; the provisions cited here are historical.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (conflicts of interest)
• MR 1.8 (specific conflict rules; business transactions with a client)
• NY DR 1-102; DR 2-103; DR 5-103(B)(1)

Statutes:

• N.Y. Insurance Law 6804(c) (bar member profiting from giving bail); N.Y. Judiciary Law 479 (solicitation)

Other opinions cited:

• N.Y. State 576 (1986): real estate lawyer also acting as a title insurance agent, with disclosure
• N.Y. State 595 (1988): lawyer may profit from bail bonds so long as not representing the bonded person

See also

• NY State Bar Op. 660: Defense lawyer dating the prosecutor
• NY State Bar Op. 654: District attorney prosecuting against a relative or former adviser
• NY State Bar Op. 667: Referral fee from a mortgage broker

Source

• Landing page: https://nysba.org/opinion-647/