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Client Funds

Law offices should learn to identify wire fraud scams and discuss those scams with clients.

August 23, 2022August 23, 2022Michael

In February, I blogged about an advisory opinion in which the North Carolina State Bar addressed a lawyer’s professional responsibility to learn to identify a common trust account scam.[i]  The opinion concluded that failing to recognize the scam violated the duties of competence and diligence. In doing so, the opinion cited to “the vast notice and information directed to lawyers” about the scam, as well as to the scenario’s “number of red flags that should alert a lawyer practicing today to the potential for fraud.”  My post is here, the opinion here.

I presented many CLEs in May and June.  I discussed the North Carolina advisory opinion at most of them. When I did, I often stated something like this:

  • “If the standard is ‘we’ve been warning about this scam for years,’ well, there are other scams we’ve been warning about too.  For instance, we’ve been warning about wire scams for almost as long as we’ve been warning about the scam that’s the subject of the North Carolina opinion. Will failing to identify potential wire fraud soon be a violation of the rules?”

Maybe. So, today, I’m here to remind readers of an “old” wire fraud scam and to call attention to another that is “new” to me.

The “old” scam involves last-minute changes to wire instructions. I first cautioned lawyers about the scam in 2018, stressing the importance of employing a 2nd factor authentication system to confirm changes to wire instructions.  The post included a tip from Andy Mikell, State Manager & Title Counsel at Vermont Attorneys Title Corporation (CATIC/VATC):

  • “We are telling folks that the ONLY appropriate 2nd factor authentication method is for the ‘Wiring Firm’: (a) to initiate the verification call; (b) to a phone number that they independently obtained/verified. In other words, it is NOT acceptable: (a) to receive a confirmatory phone call or (b) to call a phone number in the email which contains the requested wire change.”

Apparently, we need to continue to spread the word.

Last week I learned of a situation in which a Vermont lawyer disbursed over $250,000 from trust after receiving an email that included a change to previously agreed upon wiring instructions. The email was not from the lawyer’s client and included tell-tale signs that it was fraudulent.  Yesterday I learned of a similar incident in which a lawyer disbursed over $150,000 from trust in response to a fraudulent email that included “new” wiring instructions.

The scam that’s “new” to me is essentially the reverse: a client receives an email that appears to be from their lawyer.  The email instructs the client to wire funds.  In fact, the email is from someone pretending to be the lawyer and the funds, if sent, will soon be long gone.  You can read more about the scam in this post from Money.

Yesterday, Andy Mikell informed me that a Vermont lawyer’s client recently fell victim to the “new” version of the scam.  The client, a purchaser in a real estate transaction, wired $175,000 in response to an email that the client thought was from their lawyer.  It was not.

Having spoken at several CATIC/VATC seminars over the years, I have first-hand knowledge that Andy and Liz Smith preach that law firms should adopt a standing policy of informing clients in-person and at intake that the firm will never send an email asking the client to wire funds.  Indeed, yesterday Andy emailed me that CATIC/VATC

  • “suggests that the time to inform buyer clients about the risks of wire fraud is at file intake.  Clear oral communication between firm and client is imperative. Depending on the firm’s wire policies, oral communication might look like: ‘Wire fraud is rampant. We will NEVER EVER send you an email or a fax asking you to wire money to anyone or, if we do, we will NEVER EVER send you an email or a fax asking you to wire money to anyone without speaking with you directly on the telephone’. That same communication should also be set forth in the firm’s engagement letter and signed by the client.  Clients should be told that if they receive an email or a fax asking them to wire money, to call the firm’s known phone number for confirmation, and not the phone number in the email or fax.”

Good tips. And remember: these scams are not limited to firms that represent buyers & sellers in real estate transactions. They’ll target anyone who might wire funds for whatever reason.

 As always, let’s be careful out there.  


[i] Lawyer is contacted by a client who is owed a debt.  Client only deals with Lawyer by email.  Client reports that Debtor will not pay. Lawyer agrees to represent Client. Debtor (suddenly) can’t send a check to Lawyer fast enough. Client instructs Lawyer to deposit the check, keep Lawyer’s fee, and wire the balance. Lawyer follows Client’s instructions. Later, it becomes apparent that Debtor’s check was fraudulent. 

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  •  Don’t Fear, Simplify.  (25 minutes)
  • Basic Requirements(41 minutes)
  • Contingent Fees, Referral Fees & Fee Sharing(22 minutes)
  • Flat Fees, Misappropriation & Trust Account Scams(35 minutes)
  • Collecting & Disbursing Funds(33 minutes)

Blog Posts

  • Vermont’s rules on fees labeled “non-refundable” or “earned upon receipt”
  • Beware the severance payment scam
  • Reconciliation (again) is a good thing! Plus, a tip to protect against check fraud
  •  Timely reconciliation alerts firm to trust account fraud
  • A lawyer’s professional responsibility to learn to identify common trust account scams
  • Lawyers aren’t Kramer: when it comes to trust accounting, there are no excuses
  • Back to (trust account) school
  • Safeguarding Client Funds: Tech Competence & Mobile Payment Apps
  • Taylor Swift & Trust Accounts: Don’t Say I Didn’t Warn Ya
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  • Trust Accounting Tips
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  • Third-Party Claims against Client Funds
  • With trust accounts, verify
  • Misappropriation: Don’t.
  • Misappropriation: Don’t.
  • Trust Account Tuesday: Nonrefundable fees
  • Teddy KGB on prompt notification and delivery
  • When a third-party asserts an “interest” in funds held in trust
  • Trust Account Tuesday: (generally) don’t disburse absent collected funds.
  • Trust Accounting: Basic Requirements
  • Trust Account Tuesday: Don’t Commingle
  • Trust Accounts & ACH Transfers
  • Trust Account Scams: Change in Wire Instructions? CAUTION!!!!
  • Don’t overcomplicate trust accounting.

Timely Reconciliation Continues To Protect Vermont Law Firms Against Trust Account Fraud

August 2, 2022August 2, 2022Michael 1 Comment

Hello.  Long time no blogging.  I’d write that I’m glad to be back, but this isn’t one of the posts. Rather, I’m here to warn about trust account fraud and emphasize the role that timely reconciliation plays in protecting against it.

Last winter, I posted about two instances in which timely reconciliation had alerted firms to trust account fraud.  The first involved fraudulent checks.  The second involved unauthorized ACH disbursements made from a trust account.

The former has resurfaced.  If it ever left.

A Chittenden County lawyer contacted me this morning.  Reconciling the firm’s pooled interest-bearing trust account (IOLTA), the bookkeeper noticed multiple checks that looked exactly like the firm’s trust account checks, bore the proper account and routing numbers, and even included the bookkeeper’s signature. However, the bookkeeper knew that she had not issued checks to the named payees. The checks were fraudulent. Somehow and somewhere, someone accessed one of the firm’s actual checks, generated fraudulent facsimiles thereof, and expertly changed the payee.  Upon being alerted to the fraud, the firm’s bank made good on the funds.

How the fraud occurred remains unclear.  Here’s what’s clear.

Yes, trust account fraud is unrelenting and increasingly sophisticated. But regular and timely reconciliation can reveal fraud and help lawyers to safeguard funds that would otherwise be gone from trust.

In February’s post about the firm that discovered unauthorized ACH disbursements, I noted that the firm had “moved to a version of ‘positive pay.’”  I encouraged others to consider doing the same. On the CLE circuit this spring, I learned that many have.  You can read more about “positive pay” here.   (Note: my sense is that most Vermont firms use “reverse positive pay.”)  Anyhow, here’s an excerpt from February’s post that bears repeating:

“Nothing in this post should be read as me stating that the Vermont Rules of Professional Conduct require lawyers and law firms to enroll in a “positive pay” program.  However, it’s worth considering.  As I mentioned in A Lawyer’s Professional Responsibility to Learn to Identify Common Trust Account Scams, if trust funds go missing, the question will be whether the lawyer took reasonable steps to safeguard them.  I could envision a disciplinary prosecutor asking, “did you ever check whether your bank offers a ‘positive pay’ or a similar service?”

As always, let’s be careful out there.

fraud

Trust Accounting Resources

Videos

  • Don’t Fear, Simplify.  (25 minutes)
  • Basic Requirements(41 minutes)
  • Contingent Fees, Referral Fees & Fee Sharing(22 minutes)
  • Flat Fees, Misappropriation & Trust Account Scams(35 minutes)
  • Collecting & Disbursing Funds(33 minutes)

Blog Posts

  • Vermont’s rules on fees labeled “non-refundable” or “earned upon receipt”
  • Beware the severance payment scam
  • Reconciliation (again) is a good thing! Plus, a tip to protect against check fraud
  • Timely reconciliation alerts firm to trust account fraud
  • A lawyer’s professional responsibility to learn to identify common trust account scams
  • Lawyers aren’t Kramer: when it comes to trust accounting, there are no excuses
  • Back to (trust account) school
  • Safeguarding Client Funds: Tech Competence & Mobile Payment Apps
  • Taylor Swift & Trust Accounts: Don’t Say I Didn’t Warn Ya
  • Disbursing without Collected Funds
  • Mobile Payments & Legal Fees
  • Trust Accounting Tips
  • Trust Account Scams Continue
  • & Jack Torrance: an overview of the trust account rules
  • Third-Party Claims against Client Funds
  • With trust accounts, verify
  • Misappropriation: Don’t.
  • Misappropriation: Don’t.
  • Trust Account Tuesday: Nonrefundable fees
  • Teddy KGB on prompt notification and delivery
  • When a third-party asserts an “interest” in funds held in trust
  • Trust Account Tuesday: (generally) don’t disburse absent collected funds.
  • Trust Accounting: Basic Requirements
  • Trust Account Tuesday: Don’t Commingle
  • Trust Accounts & ACH Transfers
  • Trust Account Scams: Change in Wire Instructions? CAUTION!!!!
  • Don’t overcomplicate trust accounting.

With trust accounts and client funds, beware of taking the easy way out. It could cost your law license.

April 19, 2022Michael 1 Comment

The following inquiry is not uncommon:

  • “Mike – I owe Former Client a small amount of money. Between the time it’ll take me to prepare and send a check, and the time and hassle of Former Client having to go to the bank, it won’t be worth it for either of us.  What should I do?”

My response is always the same: “I can’t tell you what to do or not to do.  But if it were me, I’d send my former client what I owe them.”

As of today, I have a case to cite with my response.  Granted, it’s an extreme example, but in that it resulted in a recommendation to suspend a lawyer’s law license, it might serve as helpful guidance. Especially considering that the lawyer had never been disciplined in his previous 51 years of practice.

legal ethics

Last week, a hearing committee of the Louisiana Attorney Disciplinary Board recommended a 2-year suspension, all suspended but 6 months, after concluding that a lawyer violated the rules by failing to properly handle client funds.  The Legal Profession Blog reported the recommendation.  Here’s what happened.

The lawyer’s bank notified Louisiana’s Office of Disciplinary Counsel (ODC) that checks drawn on the lawyer’s trust account had been presented against insufficient funds.  The ensuing investigation grew beyond the overdraft notice and revealed that, for years, the lawyer had converted client funds.

More specifically, ODC learned that, from 2012 thru 2018, the lawyer had received over $17,000 in refunds from various courts. (It’s not clear to me why the lawyer frequently received refunds from courts.)  Anyhow, the refunds represented amounts that clients had paid to the lawyer. Nevertheless, the lawyer did not inform the clients or send them their refunds.  Rather, the lawyer kept the funds in trust and tracked them in their own sub-account.  Intending to regularly maintain $100 in the sub-account, each month, the lawyer paid himself the balance that exceeded $100.

Before we continue, think back to the inquiry I described at the beginning of this post.  Got it in mind?

Okay.

Now, consider a statement from the hearing panel’s recommendation.  The lawyer claimed that

  • “the fees associated with reviewing the client file and writing letters to return the checks would have exceeded the amounts received.”

The hearing committee wasn’t moved.  It concluded that the lawyer violated the trust accounting rules and, by not informing clients of their refunds, the rule that prohibits dishonest conduct. Then, the committee discussed the appropriate sanction.

As outlined by the committee, the ultimate sanction turned on the lawyer’s state of mind. The lawyer argued that his conduct was negligent.  ODC argued that it was knowing or intentional.

In the end, the committee concluded that the lawyer’s conduct fell into “a grey area between negligent and knowing, and . . . was akin to gross negligence.”  Nevertheless, while concluding that the conduct was “more knowing than negligent,” the committee found that the lawyer did not have a “conscious desire to deprive clients or others of funds.”  Still, the committee recommended a significant suspension.

In so doing, the committee made two observations that made me want to share its decision.

First, the committee criticized the fact that the lawyer “perceived the funds and having to deal with them as a nuisance or inconvenience.”  The committee wrote:

  • “In the regular course of practicing law, many Louisiana practitioners encounter the inconvenient experience of receiving a refund from a clerk of court related to legal matter concluded years ago, sometime more than a decade. Most lawyers would agree that long delayed refunds to clients or third parties creates an unwelcome inconvenience. Even so, inconvenience does not excuse returning funds or property to persons to whom they belong, or at least making a diligent effort to do so.”

Second, while noting again that it did not believe that the lawyer was motived by “greed or a conscious, dishonest desire,” the committee remarked that, due to his own “laziness,” the lawyer “chose an easier, softer way than is required by the Rules of Professional Conduct and it was a violation of [the rules] to do so.”

The upshot: if you’re ever tempted to get lazy with your trust account or client funds, consider whether 6-months without practicing is worth the few minutes and dollars you’ll save.

As always, let’s be careful out there.

Trust Accounting Resources

Videos

  •  Don’t Fear, Simplify.  (25 minutes)
  • Basic Requirements(41 minutes)
  • Contingent Fees, Referral Fees & Fee Sharing(22 minutes)
  • Flat Fees, Misappropriation & Trust Account Scams(35 minutes)
  • Collecting & Disbursing Funds(33 minutes)

Blog Posts

  • Vermont’s rules on fees that are labeled “non-refundable” or “earned upon receipt”
  • Beware the “severance payment” scam
  • Reconciliation (again!) is a good thing. Plus, a tip to protect against check fraud.
  • A lawyer’s professional responsibility to identify common trust account scams
  • Lawyers aren’t Kramer: when it comes to trust accounting, there are no excuses
  • Back to (trust account) school
  • Safeguarding Client Funds: Tech Competence & Mobile Payment Apps
  • Taylor Swift & Trust Accounts: Don’t Say I Didn’t Warn Ya
  • Disbursing without Collected Funds
  • Mobile Payments & Legal Fees
  • Trust Accounting Tips
  • Trust Account Scams Continue
  • I. & Jack Torrance: an overview of the trust account rules
  • Third-Party Claims against Client Funds
  • With trust accounts, verify
  • Misappropriation: Don’t.
  • Misappropriation: Don’t.
  • Trust Account Tuesday: Nonrefundable fees
  • Teddy KGB on prompt notification and delivery
  • When a third-party asserts an “interest” in funds held in trust
  • Trust Account Tuesday: (generally) don’t disburse absent collected funds.
  • Trust Accounting: Basic Requirements
  • Trust Account Tuesday: Don’t Commingle
  • Trust Accounts & ACH Transfers
  • Trust Account Scams: Change in Wire Instructions? CAUTION!!!!
  • Don’t overcomplicate trust accounting.

Again, reconciliation is a good thing! (And a tip to protect against check fraud.)

February 18, 2022Michael 4 Comments

A few weeks ago I posted Timely Reconciliation Alerts Firm To Trust Account Fraud.

Well, it has happened again.

And, this time, the firm that shared its story also shared a tip to prevent check fraud.

fraud

A lawyer called yesterday to discuss a trust account issue.  In the process of a daily reconciliation, the firm noticed an unauthorized ACH disbursement from trust. Someone had accessed the trust account to pay their credit card.  The firm is working with law enforcement to identify the culprit and has confirmed that it was not an employee, client, former client, or anyone to whom the firm delivered funds on behalf of a client.  The most likely explanation is the simplest: someone came across one of the firm’s trust account checks and wrote down or took a picture of the account and routing numbers.  Fortunately, the daily reconciliation alerted the firm to the problem.  The bank refunded the money, and the firm has taken additional steps to safeguard client funds and to protect against check fraud.

Among other things, the firm has moved to a version of “positive pay.” Every day, the bank sends the firm a list of checks that have been presented against the trust account.  The firm approves or disapproves each.  You can read more about “positive pay” in this post from Investopedia.  Note: the firm uses “reverse positive pay.”

Nothing in this post should be read as me stating that the Vermont Rules of Professional Conduct require lawyers and law firms to enroll in a “positive pay” program.  However, it’s worth considering.  As I mentioned in A Lawyer’s Professional Responsibility to Learn to Identify Common Trust Account Scams, if trust funds go missing, the question will be whether the lawyer took reasonable steps to safeguard them.  I could envision a disciplinary prosecutor asking, “did you ever check whether your bank offers a ‘positive pay’ or a similar service?”

Personally, I’d not want my answer to be “a what?”

As always, let’s be careful out there.

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