Re-posted on May 24, 2017 to reinforce the message and because I inadvertently posted a draft version last night.
I am scheduled to present several CLE programs on various topics between now and the end of June. At each, no matter my assigned topic, I will use some of the time to warn about trust account scams.
At the seminars, I will be very clear: in my opinion, we’re not far from the day when “but I was scammed!” will not excuse a violation of the rules. It might mitigate the ultimate sanction, but it will not excuse the failure to safeguard client funds.
By way of analogy, I’ve used this blog to stress the duty to safeguard client information.
With respect to client information:
- Rule 1.1’s duty of competence includes a duty to act competently to protect client communications.
- Rule 1.6 prohibits a lawyer from disclosing “information relating to the representation” absent client consent.
- Rules 1.1 and 1.6 operate to impose a duty to take reasonable precautions to ensure that client information is not disclosed to or accessed by people who shouldn’t receive or access it.
- The duty necessarily includes taking reasonable precautions to safeguard client information that is transmitted and stored electronically.
I feel the same about client funds.
- Rule 1.1 requires lawyers to provide competent representation.
- Rule 1.15 is entitled “safekeeping property.”
- I construe the two rules as operating to impose a duty to act competently to safeguard client funds.
- The duty necessarily includes a duty to take reasonable precautions to ensure that client funds are not disbursed to or accessed by people who shouldn’t receive or access them.
In order to take reasonable precautions to safeguard client funds, it’s crucial to understand the various threats to client funds. Here are 3 common trust account scams and their telltale signs.
- Client Outside Vermont is Owed a Debt by a Vermonter
- Compromised E-Mail/Wire Instructions
- Recipient of Trust Account Check Asks for Wire Instead
Client Outside Vermont is Owed a Debt by a Vermonter. Client, who is outside of Vermont, contacts Lawyer by e-mail and asks Lawyer for help collecting a debt from someone in Vermont. This version of the scam can take various forms, including:
- Client recently divorced and moved away (or was deployed). The marital property was in Vermont. Ex-spouse sold the property and has refused to send Client’s share of the proceeds.
- Client manufactures & sells goods. Client shipped goods to Purchaser in Vermont. Purchaser has refused to pay.
Typically, within a very short time of Lawyer agreeing to represent Client, UPS or FedEx delivers a check from “debtor” to Lawyer. Client is thrilled at how quickly Lawyer convinced debtor to pay! Client directs Lawyer to deposit the check, keep a chunk, and wire the remainder to Client. Lawyer deposits the check into trust & disburses Client’s share.
A few weeks later, Lawyer’s bank informs Lawyer that the check from “debtor” was fraudulent. Money that belonged to other clients is no longer in trust, having vanished with the wire to Client. Trust me, we ain’t in Kansas anymore. The odds of contacting “Client” and having him or her return the money are not good.
This has happened MULTIPLE times in Vermont over the past year. Last year, disciplinary counsel recommended that a hearing panel of the Professional Responsibility Board admonish a lawyer who had fallen for this precise scam and improperly disbursed over $400,000 from trust. The panel rejected the request, concluding that falling for the scam did not rise to the level of an ethics violation.
It’s inconceivable to me that this version of the scam isn’t a violation. It’s not the equivalent of a football team scoring a touchdown by surprising the defense with a trick play. It’s Tom Brady throwing a pass to Rob Gronkowski running uncovered down the middle of the field – – with the defenders claiming in the post-game press conference that they didn’t know the Patriots might do that.
To be clear, if Gronkowski is double-teamed but makes an incredible catch of an even more incredible pass, that’s one thing. On the other hand, the failure to cover Gronkowski as he runs down the middle of the field amounts to a failure to take reasonable precautions against a touchdown pass byTom Brady.
Compromised E-Mail/Wire Instructions. This version scam typically targets real estate closings. Attorney holds, or soon will hold, Seller’s proceeds. Attorney receives an e-mail instructing Attorney to wire the proceeds to an account that is different from any account Seller may have previously provided to Attorney.
In one version of this scam, the e-mail account is fake. For example, let’s pretend I am the Seller.
My e-mail address is firstname.lastname@example.org. Attorney holds the proceeds of the sale of my house. Attorney receives an e-mail from email@example.com instructing Attorney to wire the proceeds to an account that is not the same account that I previously provided to Attorney.
Do you see the scam? If not, here’s a hint. My name is Michael. Look closely at how I spelled my first name in the 2nd email address.
This happened in northern Vermont last year. Seller’s attorney wired the funds after receiving an e-mail that appeared to be from Seller, but was from Seler. In a stroke of incredible good fortune, Seller happened to walk into Attorney’s office within minutes of Attorney wiring the funds. They quickly figured out what had happened, contacted Attorney’s bank, and stopped the wire.
In another version of this scam, the e-mail is actually from Seller or Seller’s attorney, but the account has been hacked/compromised. The e-mail includes new wiring instructions and is often followed-up by a phone call from a number that’s been hacked to appear as if it’s from Seller or Seller’s attorney. Like the others, this version of the scam recently caught a Vermont lawyer.
When wiring instructions are changed by e-mail or phone call, take the time to confirm the change by speaking with someone who you know (a) is who they say they are; and, (b) has the authority to make the change.
The North Carolina State Bar issued a warning about this version of the scam. Please read the warning. In my view, the duties that it highlights are as applicable in Vermont as they are in North Carolina.
Recipient of Trust Account Check Asks for Wire Instead. This has been going on for years. Attorney delivers a trust account check. The recipient asks Attorney for a wire instead.
Alarm bells should go off whenever you deliver a check and the recipient asks that you disburse by wire instead.
Even if this happens at the closing table, and the request for a wire comes 3 seconds after you handed a trust account check to Seller, beware! Without you noticing, Seller might have used a mobile device to scan and “deposit” the check. When you take it back and send a wire instead, the money could be gone TWICE from your trust account. Money that belongs to other clients.
This too happened many years ago in Vermont. Client arrived at Lawyer’s office to pick up a check. Lawyer handed the check to Client. Client left the office, but came back in about a minute later. Client gave the check back to Lawyer and asked for a wire. Lawyer took back the check, ripped it up, and wired the funds.
In the parking lot, Client had used an app to “cash” the check.
Key takeaway: your antennae should be tuned into any situation in which you deliver funds by trust account check & the payee later asks for them by wire instead.
Again, I do not think we’re far from the day when a lawyer who falls for a scam will be disciplined. My thinking mirrors the conclusion reached by the North Carolina State Bar in Inquiries #4 & #5 of 2015 Formal Opinion 6. As the NC Bar stated:
- a lawyer has a duty to implement reasonable security measures to protect client funds;
- a lawyer has a duty to stay abreast of the risks associated with online banking and to actively maintain end-user security at the law firm, including by non-legal staff; and,
- the failure to verify a disbursement change constitutes a failure to use to reasonable precautions to protect client funds.
I understand that scams are sophisticated and ever-evolving. But most scams share telltale signs. At some point, we’re going to have accept the old adage: fool us once, shame on you. Fool us twice, shame on us.