Dual legal role debated

Web Posted: 02/09/2008 11:41 PM CST

Karisa King
Express-News
First of two parts
Michael Sanchez faced a tough choice: pay a bondsman to get him out of jail or hire an attorney who would take his case to trial. When he found a lawyer who promised to do both at a price he could afford, he thought he'd found an easy fix.

His decision only led him into a deeper hole.

After Sanchez missed a court date, his attorney, Kelly Green, asked a judge to issue a warrant for his arrest and sent bounty hunters to apprehend him. Before long, Sanchez was back in Bexar County Jail, too broke to hire another lawyer and left to rely on the same attorney who, he believed, had worked against him.

"I didn't trust her," Sanchez said. "I was uncomfortable, but what could I do? I had already paid her for her services."

His case is a textbook example of what can go wrong when lawyers play the dual role of attorney and bail bondsman.

Nearly all other states prohibit the practice because it can lead to conflicts of interest, pitting an attorney's own financial benefit against the duty to fight for clients in court. For that reason, the American Bar Association said attorneys should not post bonds for their clients except in rare circumstances.

But some lawyers routinely take advantage of an obscure state law that allows them to bail out inmates, a San Antonio Express-News analysis has found. A review of computerized court records shows about 250 lawyers posted bonds in Bexar County last year, including 18 lawyers who each signed bonds totaling more than $1 million.

Charging the industry standard of about 10 percent of the total bond amount, some lawyers have turned bail bonds into a bread-and-butter part of their law practices.

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Green, Sanchez's attorney, leads the pack. She posted more than $5.1 million worth of bonds on about 430 cases last year, more than many professional bail bond companies in Bexar County.

Texas law uniquely contradicts ethics experts who condemn the practice. State law allows attorneys to bail out prisoners on the condition they later represent those defendants in court. A review of several dozen cases shows some attorneys may be skirting the law by posting bail for inmates while other lawyers do much of the legal work.

But the law is vague. It doesn't spell out the amount of work the bonding attorney should do on a case.

Among attorneys who post the most bonds is former state Rep. Robert Puente, who signed about $1.4 million in bonds in 2006 and about $550,000 last year. Although Puente has posted numerous bonds worth more than $50,000 each in recent years, records show he rarely appeared in court to present plea bargains for those clients and almost never filed motions relating to evidence in those cases and others. Instead, other attorneys routinely filed the paperwork and appeared on the trial dates.

As a lawmaker, Puente defended the practice while personally profiting from it. In 2001, Puente filed an amendment to extend the ability of lawyers to work in other counties without filing financial records in those counties. The provision failed.

A 2005 state law aimed at cracking down on attorneys who sign bonds without representing defendants has had little effect. And judges rarely enforce the law.

In Sanchez's case, he's adamant he never intended to skip his trial. But his failure to appear resulted in an automatic arrest warrant. At that point, Green was obligated to turn him in.

But Sanchez said he wasn't aware of the warrant until Green's bounty hunters came to his home. He felt betrayed because he believed she could have taken less dramatic measures to clear up his warrant.

"There is no way she tried to get a hold of me," Sanchez said. "She knew where I lived. She knew my phone number. She knew where I worked. She knew where my mom lived."

Sanchez thinks Green was too quick to throw him to the wolves since she already had collected about $4,000 of the $5,000 he owed her for posting his $30,000 bond and representing him.

Green declined to comment for this report, but her husband and office partner, Robert Behrens, said Sanchez had paid more like $1,000.

After the bounty hunters came looking for him, Sanchez admits that he got angry and went on the run.

The bounty hunters watched as police caught him in February 2006. He spent the next three months in jail without a visit from Green, he said. Yet she remained his lawyer on charges of drug possession and aggravated kidnapping even as she faced about $1,100 in fines because she had failed to quickly bring him to justice. After delaying the cases, Sanchez said, Green pressed him to take a plea deal that would have sent him to prison for five years.

He refused, fired Green and asked for a court-appointed attorney. The new lawyer, James Wheat, arranged a plea deal that reduced Sanchez's kidnapping charge to a misdemeanor and a judge sentenced Sanchez to time served.

"All he wanted from the beginning was a trial," Wheat said.

Pandora's box

Attorneys who post bail say they do it as a service for their clients. After scraping together enough money to get out of jail, lawyers say, most offenders have little money for the legal fight.
"It's kind of a necessity. We do it to help people," said William Reece, who is among the busiest lawyers in the bonds business and has posted bonds totaling as much a $1 million for a single client. "I don't like making bonds. I just do it. There aren't too many people who have money for an attorney and a bondsman. I have a high-volume practice with a lot of poor people."

But the motivation isn't purely altruistic.

Lawyers run ads side-by-side with commercial outfits in the bail bond section of the Yellow Pages. Unlike professional bondsmen, lawyers tout more than quick freedom: their ads promise bond payments will count toward legal fees.

The appeal draws thousands of inmates every year, accounting for about a third of all bail bond business in Bexar County.

The role of a bondsman is to ensure a defendant appears for trial. If a defendant flees, the bondsman is liable for the full amount of the bond set by a judge. The arrangement builds a financial incentive for bondsmen to catch fugitives.

In a 2004 ethics opinion, the American Bar Association sharply advised attorneys against posting bonds. Tom Fitzpatrick, a Seattle attorney on the ethics committee that issued the opinion, said a bondsman's job clashes on a fundamental level with the role of an attorney.

"As the lawyer you're supposed to be doing everything you can to advance your client's case, not taking any action that's detrimental to your client," he said.

The group stopped short of saying the practice should be banned across the board because it envisioned some extraordinary examples when it might be proper.

"For example, you represent a corporate executive who's busted for a misdemeanor DWI, and you've represented him in the past, and you're going to be paid back tomorrow, and there's no risk the guy will flee," Fitzpatrick said. "We did come to the conclusion that those situations were relatively few and far between. That's why lawyers should not be doing this in the normal course because it just creates too many problems."

When attorneys play both roles it opens a Pandora's box of ethics questions: What happens if a client hints at skipping out on trial? Should the attorney disclose that information to a judge � even if it came up in confidential conversations?

Could an attorney's own financial risk motivate a quick plea bargain? And how does an attorney with substantial money hanging in the balance tell a client that a case looks bad?

To protect their own financial stake, attorneys afraid of spooking their clients might be tempted to sugarcoat the likelihood of a prison sentence, or, in the opposite extreme, ethics experts say a lawyer would have incentive to cover for someone who misses court.

"If it's not your money on the line, it's much easier to say: I don't know where my client is," said Claude Ducloux, the former chair of the Texas Center for Legal Ethics and Professionalism. "It's a dangerous practice which compromises a lawyer's relationship with the client."

A review of cases illuminates the varied pitfalls.

In some cases, attorneys continued to represent defendants after the bond agreements soured. When lawyers arranged to have clients arrested and also dropped their legal cases, it left defendants stranded without an attorney or forced to switch to court-appointed lawyers at taxpayer expense.

In the case of San Juan Gustamante, the attorney's financial stake on a bond raised enough questions to prompt a new trial.

Gustamante, who was accused of possession with intent to deliver cocaine, argued that his attorney, Jeffrey Scott, enticed him into a plea deal by promising a light sentence. On the day he was hired in February 2003, Scott signed Gustamante's $50,000 bond. Three and a half months later, Gustamante pleaded guilty. The deal capped his possible sentence at 18 years, but left it to then-Judge Mark Luitjen to decide the exact terms.

In a sworn statement, Gustamante said he entered the deal reluctantly because he had prior felony convictions and knew Luitjen's reputation as one of the toughest judges in the courthouse.

"Only after Mr. Scott reassured me that he had a close personal relationship with Judge Luitjen, and that Mr. Scott was going to take the Judge on a fishing trip to Costa Rica, did I feel safe entering into the plea bargain," Gustamante said in the affidavit.

As the sentencing loomed, Scott repeatedly assured him that Luitjen would give him probation or only a few years behind bars, the statement said. When Luitjen sentenced him to 18 years in prison, Gustamante said he was "dumbfounded."

In a motion for a new trial, attorney Alex Scharff said Scott misled Gustamante to protect himself. The swiftness of the plea deal also raised his eyebrows.

"You just don't do that," Scharff said. "You don't really plead people out that early unless you've got a great deal. Anybody who knew Judge Luitjen could have guessed just by looking at the plea agreement what was going to happen."

Scott, who posted about $1.2 million in bonds last year, said he made no promises to Gustamante. The turnaround on the case gave him ample time to snare what he deemed to be a good deal for Gustamante given his criminal record.

"My position on that was that he was a liar," Scott said. "He's a drug dealer that lies."

He said he harbored no concern that Gustamante might take off.

"I honestly didn't think the guy was going to flee," he said. "He showed up to all his court dates."

The case came to an ironic end. After winning a new trial, Gustamante again bonded out of jail with the help of another attorney. He went on the run and remains a fugitive.

'Every single time'

In some states, attorneys who post bail bonds for their own clients can face criminal charges. Other states prohibit bondsmen from even recommending attorneys.
Texas takes the opposite approach. For decades, state law has allowed attorneys to bail out inmates as long as they later represent them in court.

But the law doesn't specify how much of the legal work an attorney must shoulder. And many judges interpret the law in the loosest sense � as long as lawyers handle some aspect of the case, however small, it's fair game.

Court case files raise questions about whether some attorneys represent clients in name only.

State Sen. Juan "Chuy" Hinojosa, who has sponsored bills regulating the bail bond industry, said he believes that attorneys who post bonds on cases but farm out the legal work to other attorneys are dodging the law.

"That's a way to get around the statute," said Hinojosa, a criminal defense attorney in McAllen who said he doesn't post bonds. "That's not in compliance with the spirit of the law."

A review of about 20 cases, including some of the biggest bonds posted by former lawmaker Puente since 2004, shows that he almost never filed motions relating to evidence in those cases, or made court appearances on the day judges heard plea bargains. Instead, other attorneys typically filed the bulk of the legal motions and appeared in court on the day of the plea bargains.

Since 2003, Puente has signed $5.4 million in bonds, data show. In 2006, he picked up nearly 170 bonds, surpassed by only eight other attorneys.

When he bonds someone out, Puente said he works as the attorney "every single time."

He said he teams with other attorneys who, during legislative sessions, sometimes appear in court on his behalf. He said the paperwork in court files doesn't accurately reflect his workload since he handles much of the preparations and other behind-the-scenes work.

"You'd have to go back into history to know that," Puente said. "You'd have to be in our office when we're talking to clients."

He could not recall how many times he took cases to trial in the past two years. He said he dedicates about 30-40 percent of his legal practice to criminal defense, devoting most work to civil law.

Records show that Puente, who is not board certified in criminal law, posts bonds involving many types of crimes, misdemeanors and felonies alike, from aggravated assaults to thefts, sex crimes to drug possession.

At a trial in December, Ryan Gonzalez faced two charges of intoxication manslaughter and a charge of intoxication assault. Puente had posted his bail, totaling $115,000, in November 2005. At the same time, Puente and another attorney, Rudy Vasquez, filed papers designating themselves as the attorneys on the case. Their legal tenure lasted for a week and a half before defense attorney Demetrio Duarte Jr. took over.

Gonzalez's family called Vasquez because they knew him, Duarte said. Vasquez and Puente joined up, then Vasquez told the family they would need another attorney, he said.

Vasquez "indicated they would need a specialist in a case as serious as this," Duarte said. "You better know DWI (laws) inside and out and have at least 200 jury trials behind you."

Puente had never tried an intoxication manslaughter case, but said he intended to serve as Gonzalez's attorney.

So why did he take on the bonds?

"Because when situations like that happen you associate, you retain, you hire, you seek an attorney with that type of experience," he said.

Puente, who stepped down from his Texas house seat in February, said he stopped handling bonds last year, and records show he posted his most recent bond in late September.

"I'm changing my practice," he said.

Reforms failed

Attempts to reform Texas law have come mostly from commercial bondsmen, who compete with attorneys for the same business.
Those efforts largely have failed because attorneys proliferate in the state Legislature, said Jim Warren, a lobbyist for the Professional Bondsmen of Texas, a trade group.

Every year, there's talk in the group about trying to shut down the attorneys, he said.

"I have to tell my clients that I can do this, but you're wasting your time and money," Warren said.

In 2001, the group tried to cap the amount of bonds that attorneys post at any one time to $250,000, but Warren said he was forced to quickly drop the provision.

His big victory came in 2005 with a law that requires attorneys who post bonds to file paperwork saying they've been hired. Warren said it was supposed to create a paper trail that could be used against attorneys who don't live up to the obligation.

But enforcing the law remains slippery, he said.

"I would think that most judges would pay attention to that," Warren said. "If an attorney feels brave enough to skirt (the law), and there aren't any members of the bench who want to enforce it, there's not any real enforcement mechanism."

From his seat on the bench, District Judge Sid Harle said it's impossible for him to determine how much work an attorney handles on a case. The authority to enforce the requirement lies with law agencies, he said.

"Frankly I've got enough on my plate. I'm not going to referee that," Harle said.

The judge said he sees Puente "infrequently" in his courtroom, and more often deals with other attorneys who share his cases. That's just fine with Harle because Puente's duties in Austin would have prompted legitimate but unwanted delays.

"It moved the case, so it wasn't a problem," he said.

In 2001, Puente tried to add an amendment that would have allowed attorneys to post bonds in counties where they don't typically practice � but without having to prove the financial backing. In many counties, attorneys declare their assets with their local sheriff's office, which determines how much liability an attorney can take on.

"It said any attorney in any county could write any bond and no local official could challenge it," Warren said.

Puente said he interpreted the impact of the amendment differently. It didn't do away with financial oversight, but merely allowed attorneys who had proven assets in their home county to post bonds elsewhere.

Warren said Puente slipped the amendment into a bill relating to other aspects of bail bonds.

"He blindsided us," he said. "That's always been an issue he watches with an eagle eye. I don't blame him for it. It's his business."

Lawyer's bond work draws critics

Karisa King
Express-News
Last of two parts
When it comes to posting bail bonds, few commercial bondsmen or lawyers rival Kelly Green.

Since she entered the trade in 2001, she has posted $26.5 million in bonds, rocketing to the top of the list of attorneys who work in the controversial and high-risk business.

Her popularity among jail inmates fuels a bustling legal practice that racked up 430 cases last year. It also has led Green into murky ethical territory, clashes with fellow attorneys and bonds that frequently went bad.

Most states forbid lawyers from writing bail bonds, but Texas allows the practice as long as the lawyer also represents the client. The American Bar Association says lawyers should not post bonds for their clients except in rare circumstances because of the potential for a conflict of interest.

A review of court records by the San Antonio Express-News shows more than 250 lawyers in Bexar County wrote bail bonds last year for their clients. Yet most attorneys shun the wholesale practice. Of the attorneys who posted bonds last year, about half signed off on bonds totaling less than $34,000, compared to Green's total of about $5.1 million. Five professional bondsmen did more business than Green. Their totals ranged from $5.3 to $23.5 million.

Court records show that it's not uncommon for Green's clients to end up back in jail after she requests arrest warrants for them for various bond violations. In the parlance of the bail bonds industry, it's called "offing a bond" � common practice for a bondsman who suspects someone won't show up for court.

But Green's approach has a twist: She usually continues to represent clients after dropping their bonds, even when their client-attorney relationship has soured.

Most often, Green ended bond agreements because defendants failed to report to her office and she couldn't reach them, or they were arrested on new charges, valid reasons all for going off a bond. But to sever a bond agreement a bondsman must file a statement explaining why they believe the defendant poses a risk.

Almost any conversation between an attorney and client should be confidential, said David Sheppard, a criminal defense attorney who teaches at the University of Texas Law School.

"How do you maintain a trusting relationship with the client when you've revealed perhaps confidential information about the client's financial matters and payment history and you've been the agent who threw them in jail?" Sheppard asks. "I don't know how you maintain a proper relationship at that point. Maybe some attorneys say they can, but I'm skeptical."

After bond agreements break down, there's a high likelihood that defendants feel trapped, he said.

"All the money they spent for a lawyer is gone," Sheppard said. "I would think that a lot of clients would say, 'Yeah, I don't have a choice.'"

One such client was Eleazar Lopez, who didn't show up for court on a drug possession charge in July 2006. He said he later left messages for Green explaining he was laid up with a bad back. Soon after, he was arrested for forgery.

Lopez opted not to ask for a court-appointed lawyer, thinking Green would do a better job since he had paid her some of the money he owed. But once he was back in jail, he said Green seemed more adversary than advocate. She showed little interest in pursuing evidence that would have helped him, he said, and she shot down his hope of going to trial.

"She was just in a hurry to get rid of me," said Lopez, who now is serving five years in prison on a plea deal.

Green declined to comment for this story. But her husband and office partner, Robert Behrens, said he and Green typically stay on cases unless they spend money to hunt down clients. At that point, it creates a conflict of interest, he said.

Even then, however, records show they often stay on as the attorneys. Behrens said they make exceptions in those cases, too, if the client asks them to remain. A broken bond contract won't keep him from zealously fighting as the lawyer, he said.

"Most of them are extremely grateful that you're willing to work with them," Behrens said. "The two obligations are completely separate in my mind. That's not going to impact whether I'll represent them to the best of my ability."

He called Lopez's complaint "buyer's remorse" and noted that Lopez signed the standard papers swearing that no one forced into him into the deal.

Disputed case

In other instances, Green's bonds have become problematic for fellow attorneys. Many clients first seek her out for their bail, which then triggers her obligation as attorney.
Sometimes, inmates bailed out by Green already have a lawyer.

When Erik Hull was arrested in 2005 on charges of sexually assaulting his girlfriend's daughter and held on a $500,000 bond, he hired attorney William Baskette, who got the bond lowered to $100,000. Then, Hull paid Green to bail him out and Green designated herself as his lawyer.

A month later, Green bailed out Hull's ex-girlfriend, who had called police to arrest Hull. She was pressing charges on her daughter's behalf. Green also became the attorney for the ex-girlfriend, who was arrested at the same time as Hull on a charge of promotion of child pornography because Hull told police that she had given him explicit photos of her daughter to sell, records show.

Green's move galled Baskette because Green held the key to his client's freedom � and remained on the legal pleadings as Hull's attorney � even as she represented one of the star witnesses against him. Meanwhile, Hull was the main witness against his ex-girlfriend.

"To me that was scandalous," Baskette said.

He wrote Green a letter in June 2006 expressing his concerns. Green responded in a letter saying his worries were "moot" since the ex-girlfriend had pleaded guilty in the prior month and, thus, Green was no longer the woman's attorney. It did little to allay Baskette's fears because Hull's plea bargain was still in the offing.

Behrens disputes that there was ever a conflict because both Hull and the ex-girlfriend were saying they were innocent, he said.

"At the time the bonds were posted there were no apparent conflicts of interest because both parties were denying liability," Behrens said.

At the same time, Green was trying to have Hull thrown back in jail because he was behind on payments and, according to her letter, he had failed to report to her office one day earlier that month and didn't call to explain. Green tried twice to drop Hull's bond and have him arrested, saying in court documents she had "reliable information" that he wouldn't appear for court, records show. The requests were denied.

Before leaving his post as an assistant district attorney for 15 years, James Wheat said he noticed a pattern with Green's clients: They seemed to frequently end up back in jail. From his seat across the courtroom aisle, he formed an opinion about how she managed the joint roles.

"There are a lot of attorneys who can do bonds and represent people at the same time and she doesn't seem to be able to do it," said Wheat, now a defense lawyer.

Behrens moved into Green's office in 2004 and later started working with her. Since then, District Judge Sid Harle said he has seen Green dropping fewer bonds.

Behrens said he and Green try hard to work with clients, and are more flexible than many commercial bondsmen.

According to the Texas State Bar, Green has never been disciplined as an attorney. But last year, she faced a criminal charge of her own. She was tried on a felony assault charge stemming from a 2003 incident with the mother of her ex-boyfriend. The jury couldn't reach a verdict � one juror believed she was guilty � and the judge declared a mistrial.

Sitting in jail

Green's entry into the case of Rudy Medina stirred confusion over who his lawyer was. Medina's family asked attorney Celeste Ramirez to represent him on a charge of aggravated sexual assault of a child in January 2006.
Two days later, Green posted his bond for $100,000. Green and Behrens soon filed papers saying they'd been hired as his lawyers. But by June 2006, Medina was back in jail facing a new burglary charge. His arrest ended Green's obligation on the bond, but clouded her role as attorney.

The next month, Behrens filed a motion to withdraw from the legal case, which wasn't granted.

Ten months later, confusion over who Medina's attorney was remained. In April 2007, Behrens asked for a continuance, saying Medina had hired another attorney � Celeste Ramirez. Behrens said in court documents that shortly after Green posted the bond, Ramirez had confirmed that she was Medina's attorney. Because of that, Behrens said he and Green had "not actively been involved in the case."

Ramirez said she never told Behrens that Medina had hired her.

"That's a misrepresentation," Ramirez said. "They knew I wasn't going to get on the case. And I told them why."

She said Medina's family never paid her and she told the family � and Behrens � that she would not be representing Medina.

Medina also was under the impression that Green had remained his attorney. In August 2007 � 15 months after he went back to jail � he pleaded with the judge for help.

"I do not have a valid attorney," he wrote in a letter. "The Kelly Green Firm was my bondsman. But they also told me all fees that were paid toward my bond will apply to my legal fees which was not true because now I'm being told they want $3,500 that I do not have."

He said in the letter that he was innocent of the sexual assault, and admitted to the burglary.

In the end, Medina received a trial date in September 2007, and Behrens showed up as his attorney.

That day, prosecutors dropped the case.

Not mentioned in these articles is the difficulty of collecting a bond forfeiture from an attorney bond. Anyone have any stories?

So far as I am aware, in counties without a bail bond board, even the requirement of 1704.163 that the surety also represent the principal in the criminal case for which the bond was given does not apply- at least the bonds are accepted by sheriffs without such a requirement. It is undeniably a good way to feed one's criminal practice and so long as the client recognizes the potential conflict it can be a win-win situation for the parties. Will the practice go the way of the forwarding fee? Only time will tell.