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Can a Defendant’s Attorney Post Bail in Michigan?

A lawyer speaks on the phone to represent the question: "Can an attorney post bail for a client?"

Posted 2 years ago by Jim Titus

Having an attorney post bail to get his or her client out of jail may seem like an obvious, simple solution. But in Michigan, an attorney cannot post bail on behalf of a defendant, both for legal and ethical reasons. This is the general consensus among legal professionals across the country.

According to the Code of Criminal Procedure Act 175 of 1927, surety or bail posted by an attorney is prohibited.

It states, in part: “A practicing attorney or counselor shall not become a surety or post bail for the appearance of a person charged with a felony, a misdemeanor, or an ordinance violation. A surety or bail posted by an attorney or counselor in violation of this section, taken by a judge or other officer authorized by law to take a recognizance, is void.”

Michigan Compiled Laws Act 236 of 1961 further states: “No practicing attorney or counselor shall become a surety or post bond for any client in criminal or civil matters. This section shall not apply to any bond of $100.00 or less required to be filed by a fiduciary in the probate court or the family division of circuit court.”

The reason is that posting bail for a client may present a conflict of interest for the attorney. If the client does not comply with the terms of the surety agreement, it would place the client’s interests in conflict with the lawyer’s own interests as surety, as described in an ethics opinion post on the State Bar of Michigan website.

This would especially be relevant if a defense attorney posts bail for a client and the client skips bail. 

As described by Tyler Maulsby in a video on the New York-based Frankfurt, Kurnit, Klein + Selz law firm’s site: “(If a lawyer were to post the bail) it does give the lawyer a certain interest in the case because the way bail works is if you post the bail and your client comes back to court you get the bail back, but if you post the bail and your client doesn’t come back to court, then you don’t get the bail back. And that could also put the lawyer in a conflicted position … because if the client doesn’t appear for court but the lawyer knows where the client is but the client says, ‘I’m not going to appear for court,’ the lawyer’s in this dual position (as a lawyer with duties of) confidentiality and loyalty to the client and almost a bondsman who wants to bring the client back to court so that they can make sure that they get their money back.”

Generally, a lawyer can’t help his or her client with any financial support unless it’s related to the court case itself, and even then there may be some hesitation or ethical concerns.

With the COVID-19 pandemic continuing, there has been a greater need to keep people out of jail, even if it is just for one or two nights. For that reason, lawyers and others in the legal system may be trying to get their clients out of jail as soon as possible.

While a lawyer cannot use his or her own money for a bail bond, the lawyer might possibly be able to obtain a bond at the client’s request from a third party that serves as the actual surety.

If you need a bail bond in Michigan, contact us for more information.

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