4.2 Prohibited Activities: Referral Payments, Attorney Arrangements and Case-Fixing
Key Takeaways
A West Virginia bondsman may not give anything of value to an attorney, police officer, jailer, clerk or other court attaché for procuring bail business (W.Va. Code §51-10-3; 114CSR103-5.3).
It is equally unlawful for a West Virginia official or court attaché to accept anything of value for steering a defendant to a bondsman (W.Va. Code §51-10-3).
A WV bondsman may not procure an attorney for a person charged with a crime, or accept anything of value from an attorney for referrals (114CSR103-5.5).
A bondsman may not settle, or try to procure the dismissal of, any charge with a court, prosecutor or police officer (W.Va. Code §51-10-5; 114CSR103-5.4).
Committing any act prohibited by 114CSR103-5 is itself a ground for license suspension or revocation (114CSR103-11.1.17).
Item IV.B, List of prohibited activities, cites 114CSR103-5 and W.Va. Code §§51-10-3 to 51-10-7. This section covers the "money and influence" prohibitions: paying for referrals, attorney arrangements, extra charges and case-fixing. Section 4.3 covers conduct at jails and with clients.
1. No payments for referrals from officials: §51-10-3 and 5.3
A bondsman, or any agent, clerk or representative, shall not, directly or indirectly, give, donate, lend, contribute, or promise any money, property, entertainment or other thing of value to:
- an attorney;
- a police officer, sheriff, deputy sheriff or constable;
- a jailer or probation officer;
- a clerk or other attaché of a criminal court; or
- a public official of any character,
for procuring, or assisting in procuring, any person to employ that bondsman as surety for compensation in a criminal case.
The rule runs both ways. It is equally unlawful for any attorney, police officer, sheriff, deputy, constable, jailer, probation officer, clerk, bailiff or other court attaché or public official to accept or receive such a thing of value.
"Entertainment" is named on purpose. Free meals, game tickets or holiday parties given to jail staff in return for referrals count. Indirect payments through a relative or a "consulting fee" count too.
2. No attorney-bondsman referral loops: §51-10-4 and 5.5
From the attorney's side (§51-10-4): an attorney may not give, lend or promise anything of value to, or split or divide any fee or commission with, a bondsman, police officer, sheriff, deputy, constable, probation officer, assistant probation officer, bailiff, clerk or court attaché for getting a person to hire that attorney in a criminal case.
From the bondsman's side (114CSR103-5.5):
- a bondsman, or agent, clerk or representative, shall not procure, assist in procuring or attempt to procure the retention or employment of any attorney to represent a person charged with a crime in any West Virginia court; and
- a bondsman shall not accept from any attorney any loan, donation, contribution, promise or thing of value, or split or divide any fee or commission with an attorney, for steering a client to that attorney in a criminal case.
A bondsman may not act as a lawyer's referral service, even without payment. The first clause bars procuring or attempting to procure an attorney's employment at all.
3. Only the bonding fee: §51-10-5 and 5.2
As section 4.1 explained, a bondsman may charge only the bonding fee to a person bonded. Nothing else may be charged for any other service connected with the indictment or charge.
4. No case-fixing: §51-10-5 and 5.4
A bondsman, or agent, clerk or representative, shall not settle, attempt to settle, procure or attempt to procure the dismissal of any indictment, information or charge against a person in custody or on bond, with any court, prosecuting attorney or police officer.
The bondsman has a financial interest in the case ending, because the bond is then released. That interest is exactly why the law keeps bondsmen out of plea or dismissal negotiations. Defense counsel represents the defendant, and the bondsman does not.
How violations are punished
| Consequence | Source |
|---|---|
| Crime: fine up to $100, jail up to 6 months, or both | §51-10-9 |
| Bondsman disqualified from the bonding business for a period the judge orders | §51-10-9 |
| Official removed from office on the judge's recommendation | §51-10-9 |
| Attorney subject to suspension or disbarment | §51-10-9 |
| Bondsman's license suspended or revoked; civil penalty up to $100 per occurrence | 114CSR103-11.1.17, 11.3 |
Scenarios
- Holiday gift cards. A bondsman sends $50 gift cards to night-shift jail officers "for thinking of us when inmates ask for a bondsman." Prohibited under §51-10-3 and 5.3, for the bondsman and for any officer who accepts.
- Attorney lunch-and-refer. A defense lawyer pays a bondsman's office lunch every Friday, and the bondsman tells clients to hire that lawyer. Prohibited under §51-10-4 and 5.5.
- "I'll talk to the prosecutor." A bondsman tells a client's mother he will call the prosecutor and get the charges dropped so the bond can be released. Prohibited under §51-10-5 and 5.4.
- Paying a lawyer for bail referrals. A bondsman promises a defense attorney 10% of the fees on every client the attorney sends over. Promising a thing of value to an attorney for procuring bail business is prohibited under §51-10-3 and 5.3. The attorney who accepts violates §51-10-3 as well.
Exam traps
- Both sides of a kickback break the law. The official who accepts violates §51-10-3 too.
- "Thing of value" includes entertainment and promises.
- Bondsmen may not steer clients to lawyers, paid or unpaid.
- No settling or dismissing charges, with a court, prosecutor or police.
A bondsman gives a deputy sheriff season football tickets for telling arrestees to call that bondsman. Which statement is correct under W.Va. Code §51-10-3?
Both the bondsman's gift and the deputy's acceptance are unlawful
Only the bondsman violates the law; the deputy may accept gifts
Neither violates the law, because tickets are entertainment, not money
It is lawful if the tickets are worth less than the bonding fee
Which activity does 114CSR103-5.5 prohibit?
A bondsman collecting a bonding fee of 10% of the bond amount
A bondsman giving a receipt for collateral received from a cosigner
A bondsman entering a county jail after being called there by a detainee's relative
A bondsman arranging for a specific attorney to represent an accused client
A bondsman calls the prosecuting attorney to negotiate dismissal of his client's charge so the bond will be released. How is this treated?
It is permitted because the bondsman has a financial interest in the case
It is permitted if the bondsman tells the court in writing first
It is permitted only for misdemeanor charges in magistrate court
It is prohibited case-fixing under W.Va. Code §51-10-5 and 114CSR103-5.4
Sections you finish are checked off in the contents.