We have a defense attorney who is also currently serving as his client's bondsman. The attorney has filed a writ requesting a reduction in the amount of bail.
According to caselaw, a defendant must show that his attempts to make bail have failed before he is entitled to a reduction in his bail amount. Therefore, wouldn't the defense attorney now be a witness at the hearing because he is currently serving as the defendant's bondsman? Can we get the attorney conflicted out of the hearing or the case? What do you all think?

I've always thought that defense attoneys who make bonds have an inherent conflict of interest.

Not only does the attorney face the likelihood that he could become a witness against his client (for failure to appear, for example), he has a contrary interest in seeing the case disposed of quickly (so his liability on the bond is removed).

Some states make it illegal for an attorney to be a bondsman. But not Texas.

How can the attorney claim the bond is too high if he has already made it? Another conflict of interest would be his financial interest in reducing his exposure to a forfeiture.

The defense attorney already made his bond pre-indictment. Some things happened immediately after the defendant made his bond and our office quickly indicted him. So he is now in the district court and the district judge raised his bond significantly from what the JP set it at. So now the defense attorney is seeking a reduction to some level more in line with what the bond was set at previously.

Wouldn't the defense attorney have to testify about the attempts the defendant and his family have made to make this newer bond? Would that fall under attorney/client privilege? And if it did, it would seem that the the defendant would not be able to put on any evidence at the hearing and they would have to lose. It sure seems that this attorney is conflicted out.

If the attorney got the feeling that the Def. was thinking of bolting, then it would be in his best interest to have less $$$ tied up and at risk. However, if the def. does bolt and contacts his attorney to tell him or her that he's not coming back and thanks for the bond, the attorney calling and telling the court would probably not be in his client's best interest compared to his own.

Back when I did some defense work, I thought about writing small bonds for some clients. Always a nice selling point to be able to go down to the jail and spring your client asap (usually with the repeat client that we all so loved.
Problem was that if you got the feeling that he was going to scoot, you were in a jam. Couldn't sell out your client based on a hunch since it likely arose from conversation that was probably privliged. Can't tell the judge that you think your client might just be a runner or that you don't trust him...

Don't miss those days at all.

The defendant or his family can testify to the efforts they have made to find a bondsman so i don't think the d atty necessarily has to testify but John makes a cogent point: there are inherent conflicts in being bondsman and attorney.

BUT- with senate bill 7, what is a practioner to do? The d spends all his ready cash on a bond and then we give him a lawyer. As a bondsman at least the attorney can get a hybrid bond/representation fee and possibly make something like his representation is worth. Until we go to some kind of pre-trial release program similar to the feds (and oh, how they will squeak!), the bondsmen will continue to get rich and the retained counsel will go the way of the Dodo.

Has the Defendant posted the second (higher) bail, or is he sitting in jail? Seems to me if the first bond was declared insufficient and the Defendant is back in actual custody, the surety on that bond has no further liability and thus no conflict in asking for a lower bail now (even if he has also been retained as Defendant's counsel). The fact that the defendant earlier made the lower bail would be relevant, but that fact alone should not make the attorney subject to disqualification. Furthermore, you are now in a separate (habeas) proceeding, so at most the attorney might have an ethical problem only in representing his client in that proceeding (not the underlying criminal case). Neither breach of the bail bond agreement nor commission of an offense under 38.10 result from privileged communications, and thus the attorney can testify against his client. See Discip.R. 1.05(c)(5). That is just a risk the client takes in hiring an attorney/surety.

The real conflict of interest appears when the defendant does not show up for court or the lawyer knows the client will not show for court. At that point the lawyer faces the decision of whether or not to withdraw from the bond and get a warrant issued for his client's arrest. As a defense attorney, I only made bonds when the client could give me the entire bond amount in cash to hold in trust. Then I had no financial concerns about his appearance. When feesible, posting a cash bond with an assignment to the attorney is also an option. As one of the previous posters noted, the ease with which court appointed attorneys are received is a major concern for our profession.

Bail Bondsmen are not supposed to recommend specific attorneys. But people are only human, and many bail bondsmen will recommend a favored attorney. Those recommendations are not necessarily based on attorney quality. The only reason a bond agent might recommend a certain attorney is because they probably get return business. You should select your attorney based on a personal consultation – not based on what a bondsman tells you.