Ethical Issues in Estate Planning

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1 Ethical Issues in Estate Planning Mobile Bar Association Estate Planning Council Annual Seminar September 25, 2012 Mobile Convention Center Mobile, Alabama Robert E. Lusk, Jr. Assistant General Counsel Alabama State Bar P.O. Box 671 Montgomery, Alabama

2 Formal and Informal Opinions Rule 18, Alabama Rules of Disciplinary Procedure If, before engaging in a particular course of conduct, a lawyer makes a full and fair disclosure, in writing, to the General Counsel, and receives therefrom a written opinion, concurred in by the Disciplinary Commission, that the proposed conduct is permissible, such conduct shall not be subject to disciplinary action." Write: Alabama State Bar P.O. Box 671 Montgomery, Alabama Call: The Lawyer-Client Relationship A lawyer has an ethical responsibility to clarify whether or not a lawyer-client relationship is established. [Rules 1.4(b) and 4.3] In trusts and estates practice the lawyer must clarify with those involved whether a trust, a trustee, its beneficiaries or groupings of some or all of them are clients and similarly whether the client is the personal representative, the estate, or its beneficiaries. When circumstances create ambiguity surrounding the creation of a lawyer-client relationship, the lawyer s failure to clarify whether or not a lawyer-client relationship is established and the identity of the client weighs against the lawyer and the lawyer may be deemed to represent clients not intended by the lawyer. Who is the Client? Formal Opinion Representation of an Estate and Client Identity Question #1: When a lawyer is retained to assist in the administration or probate of an estate, whom does the lawyer represent? Question #2: What is a lawyer s ethical responsibility when he discovers that the Personal Representative has misappropriated estate funds or property? Answer # 1: Generally, the lawyer represents the individual who hired him to assist in the administration or probate of the estate. If that person has only one role and is not a fiduciary, the lawyer represents only that person, unless the client and lawyer agree otherwise. If the person is 1

3 the Personal Representative, 1 the lawyer represents the Personal Representative individually, unless the Personal Representative and lawyer agree otherwise. The lawyer must be careful not to, either by affirmative action or omission, give the impression that he also represents the beneficiaries of the estate. As a result, if the client is the Personal Representative only, the lawyer must advise the heirs and devisees ( beneficiaries ) and other interested parties in the estate known to the lawyer that the lawyer s only client is the Personal Representative in order to avoid violating Rule A lawyer must comply with certain duties upon undertaking representation of a fiduciary or risk violating certain rules of professional conduct. If the lawyer failed to give such notice, it could be found that he has undertaken to represent both the fiduciary and the beneficiaries of the estate. Answer #2: When a lawyer has actual knowledge that the Personal Representative has misappropriated estate funds, the lawyer s first duty is to remonstrate with the Personal Representative in an effort to convince the Personal Representative to either replace the misappropriated funds or to inform the court of the Personal Representative s misappropriation. If the Personal Representative refuses to do so, the lawyer should withdraw from the matter and, upon withdrawal, ask the court to order an accounting of the estate. Conflicts and Consent Lawyer has been employed to probate the estate of his father's stepmother. His father is the executor of the estate and is a one-fifth beneficiary. The other beneficiaries are the father's brother and three sisters. Prior to her death, the father s stepmother had a life estate in certain real property. The beneficiaries of the father s stepmother s life estate are the same as the beneficiaries of her personal estate. A dispute has arisen among the beneficiaries regarding the life estate and a petition for sale and division has been filed. In the sale for division, lawyer represents his father, and his father s brother and one sister against the other two sisters. The estate, which the lawyer is probating, owes estate taxes on the life estate property and is entitled to recover those taxes from the beneficiaries of the life estate. Does the lawyer s representation of some of the beneficiaries, at the same time he is probating the estate, result in a conflict of interest? When a lawyer is employed to probate a testamentary estate, unless otherwise provided, the personal representative is the lawyer s client. The lawyer s primary ethical and professional responsibility is to effectuate the testamentary intent. 1 This Opinion is limited to questions regarding the representation of a Personal Representative in a probate administration, except as otherwise stated. The Commission expresses no opinion herein on the duties owed by a lawyer representing the trustee of an express trust, a guardian, conservator, or attorney-in-fact. 2 Unless otherwise indicated, all references to a Rule herein are to the Alabama Rules of Professional Conduct as they exist at the time this Opinion is adopted. 2

4 The lawyer also has a duty to see that all assets, which can, and should, be part of the estate, are included therein and to maximize the value of such assets. The lawyer can only represent the estate acting by and through the personal representative. The lawyer may rely upon the personal representative to make all nonlegal decisions regarding disposition of the estate and must act in conformity with such decisions, provided they are consistent with the testamentary intent and best interests of the estate. The lawyer has an ethical and professional obligation to cooperate with and assist the personal representative in the performance of his duties. The lawyer should consider the fiduciary responsibilities that flow from the personal representative to the estate, as well as the ethical and professional responsibilities to the beneficiaries. The lawyer does not represent the beneficiaries and, should the interests of the personal representative or beneficiaries become adverse to the interests of the estate, the lawyer must protect and promote the interest of the estate acting through the personal representative. Under Rule 1.7, as lawyer for the estate, the probating lawyer would have a conflict of interest in representing any party whose interests are adverse, or even potentially adverse, to the interests of the estate. Accordingly, the lawyer would be ethically prohibited from representing either the personal representative or beneficiaries in a matter directly, or indirectly, related to the probate of the estate. The lawyer would have a conflict of interest representing the beneficiaries of the estate in the sale for division proceeding when the lawyer has a duty as the probating lawyer to collect estate taxes from those same beneficiaries. Although Rule 1.7 permits representation despite a conflict of interest when the client gives informed consent, such consent cannot be obtained in this situation because the probating lawyer may only represent the estate as an entity by acting through, and on behalf of, the personal representative, who is the only person authorized to act as the personal representative of the estate. The personal representative is, therefore, the only person who can consent to a conflict of interest. The personal representative s consent to the probating lawyer representing the personal representative individually in matters adverse to the estate would not only be ineffectual, but also would pervert the intent and purpose of the consent provision of Rule 1.7. Lawyer Personal Representative Conflict Lawyer prepared a will for an individual now deceased. The personal representative named in the will has retained the lawyer to handle the probate of the estate. Lawyer has reason to believe that the personal representative has engaged in malfeasance and misappropriation of estate assets and some of the heirs have hired independent counsel to petition for removal of the personal representative. Lawyer filed a motion to withdraw but the probate court conditionally denied the motion. Lawyer anticipates the probate court will appoint a successor administrator and that the heirs will pursue both civil and criminal remedies against the personal representative. Is the lawyer required to defend the personal representative against claims filed by heirs? Can the 3

5 lawyer continue to represent the estate in proceedings adverse to the former personal representative? The lawyer would have a lawyer-client relationship with the personal representative that would preclude the lawyer from continued representation of the estate in the event, as he anticipates, her position becomes adverse to the estate and beneficiaries. However, if the successor personal representative wants the lawyer to continue to represent the estate strictly in probating and administering the estate and retains separate counsel to pursue claims on behalf of the estate against the former personal representative, the lawyer could continue to represent the estate in that limited capacity. Lawyer as Will Drafter - Conflict Lawyer drafted a will. Will has been admitted to probate. Two of the beneficiaries have retained the lawyer to represent them in a dispute with the personal representative. More than six months has elapsed since letters testamentary were issued and no claims have been filed against the estate. The personal representative refuses to turn over the key to the home or to give the beneficiaries an executor s deed or to file an inventory. The beneficiaries believe that the personal representative has removed personal property from the home. Lawyer has removed the estate to circuit court. The lawyer for the personal representative alleges that the lawyer has a conflict in representing two of the beneficiaries against the executrix because he drafted the will. Is there a conflict? Unless the lawyer knows or it is obvious that he will be called as a witness on behalf of the beneficiaries, which he intends to represent, there is no impropriety in representing the proponents of a will to enforce the provisions of the will that the lawyer drafted because the lawyer is not attacking the will, but merely attempting to enforce the unambiguous provisions of the will. (RO-87-66) Legal Advice to Beneficiaries Lawyer has been retained to probate a man s will. A widow, a foster daughter, who lives with the widow and takes care of her, and a niece, survive the man. The estate consists of the homestead and about 15 acres of land and cash of approximately $50, Under the will the widow gets one-third of the personal property and a life estate in the realty. What ethical responsibility, if any, does the lawyer for the executor have to advise the widow of her right to an elective share? As lawyer for the executor of the estate, the lawyer owes a fiduciary duty to the estate, in other words, all of the beneficiaries under the will, and cannot act as lawyer for one beneficiary or beneficiaries in a dispute between the various beneficiaries. However, there is no ethical impropriety in advising the widow of the possibility of her right to elect not to take under the will. The lawyer should not give legal advice as to the advisability of exercising such an election and should not represent the widow should she 4

6 choose to make such an election, but should advise her to seek independent counsel with regard to the matter. (RO-84-77) Drafting Will for an Unseen Testator Fred comes into Lawyer s office and retains Lawyer to draft estate planning documents for Fred s Father. Fred has all of the necessary information regarding Father s property, how Father wants his property divided upon his death, and the names of Father s intended beneficiaries. Fred also wants Lawyer to draft other documents such as a power of attorney and advanced health care directive. Fred tells you that Father is very alert, but is bedridden and cannot come in to sign the documents. Fred offers to take the documents to Father for execution before witnesses and a notary. Fred s Father is the client Lawyer has an ethical obligation to determine to his reasonable satisfaction that client is competent to execute documents. Would it make any difference if Fred was an only child and would take all of the estate upon Father s death, anyway? It would not make any difference if Fred was the only child. Lawyer Will Drafter Representation Adverse to Personal Representative: Lawyer drafted a will in He now represents a beneficiary under the will who has some concerns about the personal representative s management of the estate and has filed an action to remove the personal representative for misconduct. The lawyer is not challenging the validity of the will or the testamentary capacity or disputing testamentary intent. The personal representative contends that the lawyer has a conflict because he drafted the will. The lawyer does not have a conflict merely because he was the lawyer that drafted the will. Lawyer Will Drafter Necessary Witness: Lawyer drafted a Will for an elderly client. The Will omitted the client s children in favor of the testator s boyfriend. The children are now challenging the will based upon undue influence and incapacity. Can the lawyer who drafted the will represent the personal representative and defend the Will? The rule applicable to your dilemma is Rule 3.7, Ala. R. Prof. C., which generally prohibits a lawyer from acting as an advocate at a trial when the lawyer is likely to be a necessary witness. 5

7 Confidentiality - Estate Planning Lawyer was representing a client in estate planning matters. The client was murdered. The client s son, and only child, has been arrested for her murder. Her will named her brother as the personal representative but left the entire estate to her son. Law enforcement has requested that the lawyer provide information concerning discussions with the client prior to her death. The lawyer is willing to cooperate in the investigation, but is concerned that the son may accuse the lawyer of breaching client confidentiality. The personal representative of the estate is willing to provide the lawyer with a written waiver authorizing the lawyer to speak freely with the investigators. Can the lawyer ethically provide this confidential information to law enforcement? Rule 1.6 requires that the lawyer maintain all information relating to the representation of a client as confidential. The Comment to that Rule provides that "[t]he duty of confidentiality continues after the client-lawyer relationship has terminated." The Disciplinary Commission and this office have consistently held that a lawyer may testify as to a deceased client's testamentary capacity if the lawyer can make a good faith determination that the decedent would want the lawyer to give such testimony and that the lawyer's testimony would be in the best interest of the decedent's estate. This principle appears equally applicable in this situation. Therefore, the lawyer may disclose to the investigators the deceased client's plans for the disposition of her estate if the lawyer can reach a determination, in good faith, that the deceased client would want the lawyer to do so and that disclosure would be in the best interest of the deceased's estate. This office expresses no opinion regarding the legal question of whether the personal representative has the authority to waive the lawyer-client privilege. However, the fact that the personal representative of the estate is willing for the lawyer to disclose this information is a clear indication that such disclosure is in the best interest of the estate. Confidentiality - Living Client Lawyer represents an older woman whose is estranged from her two daughters. The lawyer recently drafted a will for the woman naming himself as trustee/executor because of the woman s distrust of her two daughters. All the property the woman has will be left to her grandchildren. The woman has now experienced some health problems and is presently in intensive care at a local hospital. One of the estranged daughters has contacted the lawyer and wants a copy of the will. What to do? The will is confidential. Unless the client consents, the will is not subject to disclosure. 6

8 Confidentiality Produce the Will Lawyer drafted a will for a client, now deceased. The personal representative, named in the will, refuses to probate the will. The deceased client s sister, who is also a beneficiary under the will, has requested that the lawyer produce a copy of the will. Can the lawyer do so without violating confidentiality? Duty of custodian of will after death of testator; liability After the death of a testator and on request of an interested person, any person having custody of a will of the testator shall deliver it with reasonable promptness to a person able to secure its probate and if none is known, to an appropriate court. Any person who willfully fails to deliver a will is liable to any person aggrieved for the damages which may be sustained by the failure. Any person who willfully refuses or fails to deliver a will after being ordered by the court in a proceeding brought for the purpose of compelling delivery is subject to the penalty for contempt of court. Confidentiality Personal Representative v. Third Parties Lawyer was hired by the personal representative of an estate to probate the estate. The personal representative misappropriated money from the estate and has been sued by the bonding company. The lawyer has been subpoenaed to testify. Lawyer may not disclose information relating to the representation without the client s consent or pursuant to a court order, unless disclosure is necessary to defend the lawyer against allegations of misconduct. The lawyer believes that the personal representative is trying to blame her or, at least, implicate her in the misappropriation. If that is the case, then the lawyer may disclose client confidences to whatever extent is reasonably necessary to defend claims made against the lawyer. Joint Representation - Representing Husbands and Wives Second Marriage Representation: In 2004 John and Betty come to see you for estate planning advice. They are both in their 70 s, and it is the second marriage for each of them, and there is no pre-nuptial agreement between them. Each has grown children by prior marriages. John has assets of $5,000,000 and Betty has assets of $1,000,000. Each wants to take care of the other and then leave their respective assets to their own children by prior marriages. You immediately recognize that wife Betty has certain elective share rights in John s estate. You also recognize there are steps that John could take with respect to his assets that would adversely affect wife Betty s elective share rights (e.g., create probate transfers via jtwros, beneficiary designation, revocable trust, etc.). What are your ethical responsibilities to John and Betty? 7

9 Lawyer John ($5mm) Betty ($1mm) Child 1 Child 2 Child 3 Child 1 Child 2 In 2006, one of John s sons named Bill calls you upon John s recommendation and asks you to do estate planning for him and his wife. You do Wills for them. Lawyer John ($5mm) Betty ($1mm) Wife Bill Child 2 Child 3 Child 1 Child 2 In 2010, John is now 84 years old, and he calls you and tells you he and Betty have had a wonderful relationship and he now wants to leave one-half of his Estate directly to his wife Betty. You recognize this will diminish his son Bill s share of father John s Estate, and you know Bill could benefit from the inheritance because his wife has MS. Is Bill still your client? If so, what are your duties to him vis a vis his father John? Second Marriage Fiasco: Sally marries Joe in a second marriage for both. Joe has grown children from his first marriage; Sally has none. After 15 years of marriage, they both go to see Lawyer Sam for estate planning. Another lawyer in Sam s firm has done business work for Joe s company over the years. Sally and Joe tell Lawyer Sam they want simple wills that leave everything to each other and then to Joe s children. You prepare wills doing this, and you place their wills in your Will Vault for safekeeping. Five years later, Sally and Joe are divorced. Two years later, Sally dies. By virtue of the divorce, Joe is viewed as predeceasing Sally, but Sally s Will still leaves everything to her divorced husband Joe s children. Corporation Lawyer Sam Joe Sally Child 1 Child 2 Child 3 What ethical issues does this pose? Did lawyer Sam have a duty to inform Sally she needed to change her Will following her divorce? Does the fact that lawyer Sam retained custody of Sally s Will make a difference? 8

10 That Ole Cheatin Spouse: Joe and Mary come to see you to have their wills done. They married right out of college and have now been married for over 30 years, are now in their 50 s, have three grown children and six grandchildren. Joe has risen to a top-level management position at one of the long-time, successful businesses in your community. Mary has been a stayat-home Mom over the years and is now a civic volunteer. They tell you they have been fortunate and have an estate of approximately $5,000,000. They tell you their goals are to take care of each other and then leave everything equally to the children and to minimize estate taxes. You ask whether there is any concern on either of their parts about management of assets after one of them dies, and they tell you, no. You suggest by-pass / credit shelter trust wills with the marital share passing outright. Lawyer Joe Mary Child 1 Child 2 Child A few days after you meet with them, Joe calls you up and tells you that he would like to see about leaving something, perhaps a life insurance policy, to a woman with whom he has had a relationship over the years. He tells you that as far as he knows, Mary is not aware of his relationship. He asks for your advice. Can you disclose this information to Mary? Must you disclose this information to Mary? Can you give further advice to Joe? Three years later Joe calls you up and tells you he has decided to get a divorce from Mary and he asks that you refer him to a divorce lawyer. What are your ethical obligations? Referral Fees for Estate and Financial Planning: A lawyer who does estate planning and wants to know if he can refer clients to a tax advisor or financial planner and accept a referral fee. Yes, if in client s best interest and client is informed that attorney will receive a referral fee. Can the lawyer pay a tax advisor or financial planner who refers a client to the attorney a referral fee? No, lawyers may not pay non-lawyers a referral fee. [Rule 7.2(c)] Lawyer may not form a partnership with non-lawyer. [Rule 5.4(b)] 9

11 Conflicts of Interest Transactions with Clients and Client Gifts to Lawyers Lawyer may not prepare any instrument effecting any substantial gift, including a testamentary gift, from a client to a lawyer or a person related to the lawyer as parent, child, sibling, or spouse unless the donor is related to the donee. This rule does not prohibit a gift to a lawyer or a member of the lawyer s family by a donor that is not related to the lawyer or member of the lawyer s family if the gift is insubstantial in amount or in relation to the value of the entire estate or other gifts. Unlike the Model Rule, the Alabama Rule does not allow client gifts to the lawyer or persons related to the lawyer who, although not related to the donor, may be a natural object of the donor s generosity. The prohibition of this rule is imputed to lawyers practicing in the same firm. Gifts made in violation of this rule may be rescinded by the client and a testamentary gift may be set aside. Principles of undue influence treat non-related client gifts as presumptively fraudulent, so that the lawyer-donee bears a heavy burden of persuasion that the gift is fair and not the product of overreaching or undue influence. However, even in the absence of undue influence, Rule 1.8(c) prohibits these gifts. A gift is any transfer by the client of a thing of value made without consideration. Even in cases where the lawyer is related to the donor, if the lawyer receives substantially more in relation to gifts made to other relatives similarly situated a presumption of undue influence may arise. Transactions with the Estate Lawyer represents a client who is administering his mother's estate. The client is also a close personal friend of the lawyer. The estate owns real estate that it needs to sell in order to satisfy claims against the estate. The lawyer wants to buy the property. Lawyer may purchase the property from the estate, provided that he complies with the provisions of Rule 1.8(a), A.R.P.C., which provide: Transaction terms: fair, reasonable, and understandable Full disclosure in writing Opportunity to seek advice of independent counsel Client consent to transaction and terms in writing Lawyer Drafts Will Nominates Self as Trustee Lawyer has been asked to draft a will for a long-time friend who wants to name the lawyer in the will as trustee of his minor children's estate. Is this ethical? The Rules of Professional Conduct prohibit a lawyer from drafting a will or other instrument for a non-relative that gives the lawyer, or a person related to the lawyer as parent, child, sibling, or spouse any substantial gift from the client. The lawyer may draft a will or trust document that names the drafting lawyer as trustee, but the lawyer should advise the client against making such 10

12 a provision, advise the client of the conflicts involved and offer the client an opportunity to consult with independent counsel about making such a provision. This advice should be documented in a manner similar to that required by Rule 1.8(a). Lawyer as Lawyer and Executor for Estate A lawyer prepares a will for a client and, at the client s request, the lawyer is named as the executor. Can the lawyer act as both executor and lawyer for the estate? If so, can the lawyer charge a fee for his service as an executor and a separate fee for his service as lawyer for the estate? Although certain fact situations might present conflict of interest problems that would prevent a lawyer from acting in the dual capacities of executor and attorney for the estate, there is nothing unethical, per se, in a lawyer-executor acting in both capacities and receiving a fee as executor and a fee as attorney for the estate. However, the attorney should reveal to the court and the beneficiaries of the estate that he is acting in these dual capacities and he should make a good faith professional judgment that any legal work that he performs is necessary and will inure to the benefit of the estate. (RO-86-82) Lawyer Related to Testator Lawyer is one of Mother s five children. At Mother s instruction, Lawyer prepares her will leaving one-fifth of the estate to each of the children, including Lawyer. What if Lawyer receives one-half of the estate with the remainder to be divided equally between the four other siblings? What if Lawyer is asked to prepare a will for his spouse s Mother? Lawyer Drafts Will and Family Takes Substantial Gift Lawyer is asked to draft a will for a close personal friend of Lawyer s family that will name a member of Lawyer s immediate family as a beneficiary of a substantial portion of the estate. How should Lawyer handle this situation? Is it permissible for Lawyer to ask another member of his firm to draft the will? 11

13 RECENT AMENDMENTS Rule Safekeeping Property (a) A lawyer shall hold the property of clients or third persons that is in the lawyer s possession in connection with a representation separate from the lawyer s own property. Funds shall be kept in a separate account maintained in the state where the lawyer s office is situated, or elsewhere with the consent of the client or third person. No funds of a lawyer shall be deposited in such a trust account, except (1) unearned attorney fees that are being held until earned, and (2) funds sufficient to pay bank service charges on that account or to obtain a waiver thereof. Any funds while in the lawyer s trust account which the lawyer is entitled to receive as a fee, reimbursement, or costs, shall not be used by the lawyer for any personal or business expenses until such funds are removed from the trust account. * * * (e) A lawyer who practices in this jurisdiction shall maintain current financial records as provided in these Rules and required by Rule 1.15 of these Rules, and shall retain the following records for a period of six (6) years after termination of the representation: (1) receipt and disbursement journals containing a record of deposits to and withdrawals from client trust accounts, specifically identifying the date, source, and description of each item deposited, as well as the date, payee, and purpose of each disbursement; (2) ledger records for all client trust accounts showing, for each separate trust client or third person, the source of all funds deposited, the names of all persons for whom the funds are or were held, the amount of such funds, the descriptions and amounts of charges or withdrawals, and the names of all persons or entities to whom such funds were disbursed; (3) copies of retainer and compensation agreements with clients as required by Rule 1.5 of these Rules; (4) copies of accountings to clients or third persons showing the disbursement of funds to them or on their behalf; (5) copies of bills for legal fees and expenses rendered to clients; (6) copies of records showing disbursements on behalf of clients; (7) the physical or electrical equivalents of all trust account checkbook registers, bank statements, records of deposit, pre-numbered canceled checks, and substitute checks provided by a financial institution; (8) records of all electronic transfers from client trust accounts, including the name of the 12

14 person authorizing transfer, the date of transfer, the name of the recipient, and confirmation from the financial institution of the trust account number from which money was withdrawn and the date and the time the transfer was completed; (9) copies of monthly trial balances and quarterly reconciliations of the client trust accounts maintained by the lawyer; and (10) copies of those portions of client files that are reasonably related to client trust account transactions. (f) With respect to client trust accounts required by Rule 1.15 of these Rules: (1) only a lawyer admitted to practice law in this jurisdiction or a person under the direct supervision of the lawyer shall be an authorized signatory or authorize transfers from a client trust account; (2) receipts shall be deposited intact and records of deposit should be sufficiently detailed to identify each item; and (3) withdrawals shall be made only by check payable to a named payee and not to cash, or by authorized electronic transfer. (g) Records required by Rule 1.15 may be maintained by electronic, photographic, or other media provided that they otherwise comply with these Rules and that printed copies can be produced. These records shall be readily accessible to the lawyer. (h) Upon dissolution of a law firm or of any legal professional corporation, the partners shall make reasonable arrangements for the maintenance of client trust account records specified in these Rules. Comment Rule 1.15(e) enumerates the basic financial records that a lawyer must maintain with regard to all trust accounts of a law firm. These include the standard books of account, and the supporting records that are necessary to safeguard and account for the receipt and disbursement of client or third-person funds as required by Rule Consistent with Rule 1.15, this Rule requires that lawyers maintain client trust account records for a period of six years after termination of each particular legal engagement or representation. Rule 1.15(e)(7) requires that the physical or electronic equivalents of all trust account checkbook registers, bank statements, records of deposit, pre-numbered canceled checks, and substitute checks be maintained for a period of six years after termination of each legal engagement or representation. The "Check Clearing for the 21st Century Act" or "Check 21 Act," codified at 12 U.S.C et seq., recognizes "substitute checks" as the legal equivalent of an original check. A "substitute check" is defined at 12 U.S.C. 5002(16) as "a paper reproduction of the original check that contains an image of the front and back of the original 13

15 check; bears a MICR ['magnetic ink character recognition'] line containing all the information appearing on the MICR line of the original check...; conforms... with generally applicable industry standards for substitute checks; and is suitable for automated processing in the same manner as the original check." Banks, as defined in 12 U.S.C. 5002(2), are not required to return to customers the original canceled checks. Most banks now provide electronic images of checks to customers who have access to their accounts on internet-based websites. It is the lawyer's responsibility to download electronic images. Electronic images shall be maintained for the requisite number of years and shall be readily available for printing upon request or shall be printed and maintained for the requisite number of years. The Automated Clearing House ("ACH") Network is an electronic funds transfer or payment system that primarily provides for the inter-bank clearing of electronic payments between originating and receiving participating financial institutions. ACH transactions are payment instructions to either debit or credit a deposit account. ACH payments are used in a variety of payment environments including bill payments, business-to-business payments, and government payments (e.g., tax refunds). In addition to the primary use of ACH transactions, retailers and third parties use the ACH system for other types of transactions including electronic check conversion ("ECC"). ECC is the process of transmitting MICR information from the bottom of a check, converting check payments to ACH transactions depending upon the authorization given by the account holder at the point of purchase. In this type of transaction, the lawyer should be careful to comply with the requirements of Rule 1.15(e)(8). There are five types of check conversions with regard to which a lawyer should be careful to comply with the requirements of Rule 1.15(e)(8). First, in a "point-of-purchase conversion," a paper check is converted into a debit at the point of purchase and the paper check is returned to the issuer. Second, in a "back-office conversion," a paper check is presented at the point of purchase and is later converted into a debit and the paper check is destroyed. Third, in an "account-receivable conversion," a paper check is converted into a debit and the paper check is destroyed. Fourth, in a "telephone-initiated debit" or "check-by-phone conversion," bank account information is provided via the telephone and the information is converted to a debit. Fifth, in a "web-initiated debit," an electronic payment is initiated through a secure web environment. Rule 1.15(e) applies to each electronic-fund transfer hereinabove described. All electronic-fund transfers shall be recorded and a lawyer should not re-use a check number which has been previously used in an electronic transfer transaction. The potential of these records to serve as safeguards is realized only if the procedures set forth in Rule 1.15(e)(9) are regularly performed. The trial balance is the sum of balances of each client's ledger card (or the electronic equivalent). Its value lies in comparing it on a monthly basis to a control balance. The control balance starts with the previous month's balance, then adds receipts from the Trust Receipts Journal and subtracts disbursements from the Trust Disbursements Journal. Once the total matches the trial balance, the reconciliation readily follows by adding amounts of any outstanding checks and subtracting any deposits not credited by the bank at month's end. This balance should agree with the bank statement. Quarterly reconciliation is recommended only as a minimum requirement; monthly reconciliation is the 14

16 preferred practice given the difficulty of identifying an error (whether by the lawyer or by the bank) among three months' transactions. In some situations, documentation in addition to that listed in sub-paragraphs (1) through (9) of Rule 1.15(e) is necessary for a complete understanding of a trust account transaction. The type of document that a lawyer must retain under sub-paragraph (10) because it is "reasonably related" to a client trust transaction will vary depending on the nature of the transaction and the significance of the document in shedding light on the transaction. Examples of documents that typically must be retained under this paragraph include correspondence between the client and lawyer relating to a disagreement over fees or costs or the distribution of proceeds, settlement agreements contemplating payment of funds, settlement statements issued to the client, documentation relating to sharing litigation costs and attorney fees for subrogated claims, agreements for division of fees between lawyers, guarantees of payment to third parties out of proceeds recovered on behalf of a client, and copies of bills, receipts, or correspondence related to any payments to third parties on behalf of a client (whether made from the client's funds or from the lawyer's funds advanced for the benefit of the client). Rule 1.15(f) enumerates minimal accounting controls for client trust accounts. It also enunciates the requirement that only a lawyer admitted to the practice of law in the jurisdiction or a person who is under the direct supervision of the lawyer shall be the authorized signature or authorize electronic transfers from a client trust account. While it is permissible to grant limited nonlawyer access to a client trust account, such access should be limited and closely monitored by the lawyer. The lawyer has a non-delegable duty to protect and preserve the funds in a client trust account and can be disciplined for failure to supervise subordinates who misappropriate client funds. See Rules 5.1, 5.2, and 5.3 of these Rules. Authorized electronic transfers shall be limited to (1) money required for payment to a client or third person on behalf of a client; (2) expenses properly incurred on behalf of a client, such as filing fees or payment to third persons for services rendered in connection with the representation; or (3) money transferred to the lawyer for fees that are earned in connection with the representation and are not in dispute; or (4) money transferred from one client trust account to another client trust account. The requirement in paragraph (f)(2) that receipts shall be deposited intact means that a lawyer cannot deposit one check or negotiable instrument into two or more accounts at the same time, a practice commonly known as a split deposit. Rule 1.15(g) allows the use of alternative media for the maintenance of client trust account records if printed copies of necessary reports can be produced. If trust records are computerized, a system of regular and frequent (preferably daily) back-up procedures is essential. If a lawyer uses third-party electronic or internet-based file storage, the lawyer must make reasonable efforts to ensure that the company has in place, or will establish reasonable procedures to protect the confidentiality of client information. See ABA Formal Ethics Opinion 398 (1995). Records required by Rule 1.15(e) shall be readily accessible and shall be readily available to be produced upon request by the client or third person who has an interest as provided in Rule 1.15, or by the official request of a disciplinary authority, including, but not 15

17 limited to, a subpoena duces tecum. Personally identifying information in records produced upon request by the client or third person or by disciplinary authority shall remain confidential and shall be disclosed only in a manner to ensure client confidentiality as otherwise required by law or by court rule. Rule 29 of the Alabama Rules of Disciplinary Procedure provides for the preservation of a lawyer s client trust account records in the event that the lawyer is transferred to disability inactive status, has disappeared or died, has been suspended or disbarred, or has surrendered his law license. Rule 1.15(h) provides for the preservation of a lawyer or firm s client trust account records in the event of dissolution of the law practice. Regardless of the arrangements the partners or shareholders make among themselves for maintenance of the client trust records, each partner may be held responsible for ensuring the availability of these records. For the purposes of these Rules, the terms "law firm," "partner," and "reasonable" are defined in the Preamble to these Rules. Rule 4.2. Communication with Person Represented by Counsel (a) In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so. Limited Scope Representation Rules ARCP 11: A lawyer is not required to sign or put his or her name on a pleading prepared for a pro se litigant, but the document must include a notation: This document was prepared with the assistance of a licensed Alabama lawyer pursuant to Rule 1.2(c), Alabama Rules of Professional Conduct. ARCP 87 (new): A lawyer must file a notice of limited scope representation before or at the time that he or she appears in court on a limited scope basis. At the conclusion of the representation, the lawyer files a notice of completion of limited scope representation, serves the notice on the client, and then is out of the case without having to file a motion to withdraw. The Alabama State Bar has prepared forms to use which are available online. Rules of Professional Conduct: A lawyer s agreement with a client to provide limited scope representation must be in writing unless the representation consists only of a phone consultation, takes place in a pro bono clinic, or is by court appointment. Signature by the client is not required but is a good practice. For purposes of dealing with other lawyers, the client is considered to be unrepresented except to the extent that the lawyer providing limited services provides notice in writing to opposing counsel. 16

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