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The Florida Bar
www.floridabar.org
PROFESSIONAL ETHICS OF THE FLORIDA BAR

OPINION 70-8
Originally issued May 29, 1970
Revised April 23, 1993


It is not permissible for an attorney to give a letter of indemnification to a bonding company on behalf of an out-of-state plaintiff when the terms of the proposed indemnification agreement require the attorney to reimburse the surety only after the plaintiff has failed to do so. There is no ethical distinction between an attorney's becoming surety on his client's possible obligation to an opposing litigant and his becoming surety on the same possible obligation to a surety company which has become surety on the client's cost bond.

RPC: 4-1.8(e)
Statutes: F.S. § 57.011, 454.20
Rule: Fla.R.Jud.Admin. 2.060(f)

A member of The Florida Bar states that he frequently represents out-of-state clients and on many occasions is requested by defendants' attorneys to file cost bonds pursuant to Section 57.011, Florida Statutes. He further states that a local bonding company has agreed to issue nonresident plaintiff cost bonds upon the attorney's request, provided that, as attorney for plaintiff, he signs a letter of indemnification agreeing to indemnify that surety for any losses if the plaintiff fails to do so.

We are asked whether the proposed arrangement is permissible under the Rules of Professional Conduct.

Under Florida law an attorney cannot become a surety on any bond of his client in any judicial proceeding. Section 454.20, Florida Statutes; Rule 2.060(f), Florida Rules of Judicial Administration. Whether the conduct proposed by the inquiring attorney violates either the cited statute or rule is a question of law and hence beyond jurisdiction of this committee. However, the Committee is of the opinion that there is no ethical distinction between an attorney's becoming surety on his client's possible obligation to an opposing litigant and his becoming surety on the same possible obligation to a surety company which has become surety on the client's cost bond. In either case, the attorney is acting as surety for his client. The proposed scheme would, it seems, constitute an attempt to do indirectly that which the attorney is prohibited from doing directly.

Moreover, the giving of a letter of indemnification by the attorney seems to go beyond the permissible limits of Rule 4-1.8(e), as the terms of the proposed indemnification agreement require the attorney to reimburse the surety only after the plaintiff has failed to do so.

[Revised: 08-24-2011]