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

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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. …

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