This is part 2 in an ongoing series on trust accounting.
In part 1, we learned not to commingle. That is, the first principal of trust accounting is that lawyers must keep client funds held in connection with a representation separate from their own. So, then, where to hold them?
First, funds that belong to clients or third persons and that are in lawyer’s possession as a result of a lawyer-client representation must be held in an account that is clearly labeled as a “trust” account and that is at a financial institution. Rule 1.15A(a).
Second, not just any old financial institution. Rule 1.15B(a)(1) requires lawyers to “create and maintain a pooled interest-bearing trust account” at a financial institution that has been approved by the Professional Responsibility Board. The list of approved financial institutions is on this page under the heading “Attorney Trust Accounts.”
Third, lawyers must set up an accounting system that, at a bare minimum, includes the features listed in Rule 1.15A(a)(1)-(4).
- The accounting system is important. As this decision shows, the failure to have an accounting system will earn you a public reprimand. Also, per Rule 1.15A(b), lawyers must submit to trust account compliance reviews. Disciplinary Counsel regularly conducts such reviews, sometimes at random. I’ve seen the reports. The CPAs look for compliance with the “bare minimum” requirements. Several compliance reviews have resulted in the imposition of discipline for failure to maintain an accounting system that includes the required minimum features.
- Without getting too lost in the weeds, the bare minimum features are:
- a system that shows all receipts, disbursements from the trust account, including the source of receipts and nature of disbursements;
- records that identify each client or third person for whom funds are held, the amount held, all receipts & disbursements for that client, and a running balance;
- records documenting timely notice to each client or third person of receipts and disbursements; and,
- records documenting “timely reconciliation” of the account or accounts, and a “single source” that identifies all accounts maintained.
- “Timely reconciliation” is “no less than monthly.”
Fourth, interest on these pooled interest-bearing trust accounts must not be made available to the lawyer or the client. The lawyer must inform the financial institution that the interest is to be paid to the Vermont Bar Foundation. Rule 1.15B(a)(1).
- The interest will go to the client or third person ONLY if the funds are reasonably expected to earn net interest or dividends that will exceed the transaction costs and administrative costs. This is exceedingly RARE. As made clear by Rule 1.15B(a)(1), the default position is that funds go into a pooled interest-bearing trust account from which the interest is paid to the VBF. By rule, “no lawyer may be disciplined for placing client funds in the pooled interest-bearing account if the lawyer made a good faith determination that the funds” were not reasonably expected to earn net interest or dividends for the client or third person.
Finally, by rule, the financial institution MUST notify disciplinary counsel whenever an instrument drawn on an attorney trust account is presented against insufficient funds, regardless of whether the instrument is honored. In other words, it’s not just overdrafts that will be reported.
So, that concludes lesson 2. To recap:
- If you’re holding funds of a client or third person in connection with a representation, keep them separate from your own.
- Deposit the funds in a trust account at an approved institution.
- Implement an accounting system that, basically, tracks how much you have in total, how much you have for each individual client, where money came from, where money went.
- Make sure the interest goes to the Vermont Bar Foundation.