Finally some improvement, but will it accomplish anything? An analysis of whether the charitable bail bonds bill can survive the ethical challenges headed its way.

• Author: Petrossian, Alex
• Position: New York - 40th Anniversary Symposium

Introduction I. Bail, Its Tendency to Promote an Inference of Guilt for Indigent Misdemeanants, and Alternatives to For-Profit Bail Bondsmen A. Bail and Its Impact on Indigent Defendants B. For-Profit Bail Bondsmen C. Attorneys Posting Bail for Their Clients and Attendant Ethical Concerns D. The Bronx Freedom Fund: The Bronx Defenders' Alternative to "For-Profit" Bail Bondsmen E. The Charitable Bail Bonds Bill F. Attorney-Client Privilege II. Enumerating the Ethical Concerns that Exist when Attorneys at Legal Services Organizations Work Closely with Charitable Bail Funds A. Conflict of Interest B. Duty of Confidentiality C. Improper Solicitation of Clients D. Improper Financial Assistance and Entering into a Business Transaction with the Client III. Anticipating How Ethics Committees Will Resolve the Ethical Concerns A. Does a Conflict of Interests Exist when Attorneys at Legal Services Organizations Work Closely with a Charitable Corporation that Posts Bail for the Attorney's Clients? B. Can an Attorney Uphold Her Duty of Confidentiality While Serving as Her Client's Bondsman? 1. Voluntarily Revealing Information Related to a Client's Whereabouts Under 1.6(a) 2. Revealing Information Related to a Client's Whereabouts Under 1.6(b) 3. Can a Court Compel an Attorney to Reveal Information that Would Cause the Attorney to Breach Her Duty of Confidentiality to Her Client C. Is Implementing a Charitable Bail Fund Just a Way For Legal Services Organizations to Solicit Clients? D. Do Attorneys Provide Improper Financial Assistance to Their Clients or Enter into a Business Transaction with Them by Agreeing to Work with a Charitable Organization that Posts Bail on Their Behalf? Conclusion INTRODUCTION

On an unseasonably cold evening in southern Texas, Leslie Chew had trouble sleeping in the car that he called home. (1) After finally deciding that he needed something to keep warm, Mr. Chew entered a store with no money and a bad plan. Shortly after, Mr. Chew was arrested for attempting to steal four thirty-dollar blankets. (2) Later that night, a judge set bail at $3500 for Mr. Chew. (3) One hundred eighty-five nights later, Mr. Chew was still incarcerated. (4)

Mr. Chew did not spend six months in jail because he was found guilty of petit larceny. Instead, Mr. Chew was confined to a cell because he could not afford to pay either a $3500 cash deposit to the court or a nonrefundable $350 fee to a bail bondsman. (5) As a result, Mr. Chew remained in Lubbock County Jail until he ultimately received and accepted a plea from the prosecution. (6)

Similarly, Carol Brown was recently arrested in Brooklyn when a police officer claimed that he saw her drop a crack pipe. (7) When bail was set at $1000, Ms. Brown realized it would be impossible for her to come up with the money. (8) Although the case was eventually dismissed after a lab test revealed that there was no drug residue on the pipe, Ms. Brown had already spent twelve days incarcerated, eight of which were on Rikers Island. (9)

Meanwhile, a wealthy attorney in Seattle accused of raping several massage therapists was able to preserve his liberty after posting the requisite one-million-dollar bail. (10) Even the much-maligned George Zimmerman was not detained before being tried for allegedly murdering Trayvon Martin because he was released from custody on $150,000 bail. (11)

Bail is a distinctive component of the United States' legal system in that it provides wealthy individuals with the opportunity to avoid pretrial detention, while making it more likely that indigent defendants will remain incarcerated before either an admission or a finding of guilt. (12) Even if bail is set at an amount that most people would view as insignificant, it could still be prohibitive for an indigent defendant. A Human Rights Watch study found that in 2008, eighty-seven percent of New York City defendants were unable to post bail when it was set for merely $1000 or less. (13) These charges were all non-felony offenses and nearly three quarters of them were for minor transgressions such as trespassing, shoplifting, theft of services (turnstile jumping), or possession of marijuana. To make matters worse, the accused misdemeanants spent an average of sixteen days in confinement. (15)

The vulnerability of indigent defendants is hardly a new phenomenon. In fact, when Alexis de Tocqueville visited America in the mid-nineteenth century he noticed that the system of bail was disproportionately detrimental to the poor and inherently aristocratic.

It is evident that such a [system of bail] is hostile to the poor, and favorable only to the rich. The poor man has not always a security to produce, even in a civil case; and if he is obliged to wait for justice in prison, he is speedily reduced to distress. The wealthy person, on the contrary, always escapes imprisonment in civil cases; nay, more, if he has committed a crime, he may readily elude the punishment by breaking his bail. Thus all the penalties of the law are, for him, reducible to fines. Nothing can [be] more aristocratic than this system of legislation. (16) Since de Tocqueville first observed that the United States' bail system unfairly discriminates against the poor, pretrial detention has only become more common. (17) Today, sixty-two percent of the country's incarcerated population is comprised of individuals waiting to be tried. (18) Being detained pretrial deprives the defendant of the most crucial stage of a criminal case and exacerbates the chances of the accused being acquitted. (19) Furthermore, defendants who are detained pretrial typically receive harsher sentences than those who are either released on their own recognizance or able to post bail. (20)

In an effort to promote judicial parity for indigent defendants, The Bronx Defenders, a non-profit organization that provides legal representation to impoverished individuals who are charged with crimes in Bronx County, (21) solicited donations to create the Bronx Freedom Fund (Freedom Fund). (22) The Freedom Fund was a nonprofit corporation that was designed to preserve the liberties of the accused by using charitable donations to post bail for certain Bronx Defenders clients. (23)

Roughly 130 Bronx Defenders clients were bailed out by the Freedom Fund during its eighteen months of operation. (24) Although these defendants returned to court at a high rate, (25) the Fund was shut down in 2009. (26) In People v. Miranda, the Bronx Supreme Court rejected bail paid by the Freedom Fund because the Fund contravened public policy by serving as both a bail bond business and an insurance business without a valid license. (27) Because the Fund was neither registered as a charitable group nor licensed by the state to operate as a "bail bond business" pursuant to New York insurance law, the court terminated the practices of the "uninsured bail bond business." (28) In addition, the Court alluded to the possibility of ethical violations by the Bronx Defenders attorneys for their involvement with the Fund, but left the ethical questions unresolved. (29)

In 2012, New York passed An Act to Amend the Insurance Law, in Relation to Charitable Bail Organizations (The Charitable Bail Bonds Bill or Bill), which exempts charitable and non-profit organizations, like the Bronx Freedom Fund, from the licensing requirement that People v. Miranda required. (30) In signing the legislation, which came into effect in October 2012, Governor Cuomo deemed it "unacceptable for defendants to have to spend time in jail for low-level crimes they may have not committed simply because they are unable to meet the bail requirement." (31)

While the Charitable Bail Bonds Bill is certainly a valiant attempt to promote equity for indigent defendants who are vulnerable to pretrial incarceration, (32) it remains to be seen whether the Bill will accomplish anything. It is plausible that the Bill will be rendered less effective than anticipated if an attorney's involvement with the charitable organization is deemed to be unethical pursuant to New York's Rules of Professional Conduct. Although non-profit organizations that are unaffiliated with legal services organizations can post bail for indigent individuals without worrying about ethical constraints, it is unclear whether attorneys, like those at the Bronx Defenders, can abide by standards of ethics while also creating or working with a charitable organization to post bail for their clients.

Part I of this Note addresses the plight of indigent criminal defendants, attorneys' efforts to reduce their vulnerability, and the Charitable Bail Bonds Bill and its effort to promote alternatives to for-profit bail bondsmen. Part II enumerates the ethical questions that are likely to arise once attorneys at legal services organizations, like those at the Bronx Defenders, begin working with charitable corporations who post bail for the attorney's clients. Part III seeks to resolve the ethical questions that are still left unanswered in the wake of People v. Miranda and the ratification of the Charitable Bail Bonds Bill.

1. BAIL, ITS TENDENCY TO PROMOTE AN INFERENCE OF GUILT FOR INDIGENT MISDEMEANANTS, AND ALTERNATIVES TO FOR PROFIT BAIL BONDSMEN

   1. Bail and Its Impact on Indigent Defendants

      Bail is not meant to serve as a punishment to the criminal defendant. (33) In fact, the purpose of bail is not even to insure against future criminal conduct. (34) Instead, bail is a procedural mechanism that seeks to serve the dual purpose of promoting law enforcement by encouraging defendants to return to court, while simultaneously upholding the presumption of innocence that is a hallmark of the American legal system. (35) Because there has been no finding of guilt at the time bail is issued, it cannot be used as an instrument to punish the accused, but is instead "intended as a catalyst to aid the appearance of the defendant when wanted." (36)

      Although the purpose of bail is not to punish...