Show Me the $$: Trust Accounting and Fee Agreements. Earning Fees is Good... Get the Money Up Front... 10/8/2012
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1 Show Me the $$: Trust Accounting and Fee Agreements James M. McCauley, Ethics Counsel Virginia State Bar July 2012 Earning Fees is Good.... Get the Money Up Front... 1
2 1. All Lawyer Trust Accounts Must Be IOLTA A. True B. False 0 of 30 Pt. 6, IV, 20 (Maintenance of Trust Accounts) A lawyer must now opt in or opt out of establishing an IOLTA account. Prior to 2011 amendment to the rule, the newly opened account was presumptively an IOLTA account unless the lawyer executed an opt out form. A lawyer must obtain the opt in or opt out forms from the LSCV. 2. A lawyer writes a trust account on insufficient funds but the bank honors it anyway. The bank: A. Must report to VSB B. Need not report to VSB 2
3 Insufficient Funds In the past, the Virginia State Bar's rules required a bank to report an overdraft on a lawyer trust account only when the check drawn on that account was returned for insufficient funds and only if the lawyer and bank were unable to resolve the matter within three banking days (i.e., if the lawyer had not made the check good within three days). This allowed the lawyer to cover the overdraft without a report going to the Bar. The current rule is quite different. Insufficient Funds Under Rule 1.15 and Paragraph 20, whenever any instrument (i.e., check) is presented against a lawyer's trust account which has insufficient funds on deposit to cover payment of the instrument, the bank or financial institution must report that event to the Virginia State Bar, and this obligation to report applies whether or not the bank honors the instrument. Paragraph 20, Appendix A.5. Fiduciary Duty 3
4 A. True B. False 3. There are no specific types of records required to maintain a trust account Required Records In simplest terms, the record keeping requirements of Rule 1.15(c)(1) and (2) require only that the lawyer establish and practice sound procedures for recording cash received into trust (the cash receipts journal ), cash being paid out from trust (the cash disbursements journal ), and a consistent, reliable, and separate system for recording the trust account transactions relating to each individual client (the subsidiary ledger ). Cash Receipts Journal 4
5 Cash Disbursements Journal Client Subsidiary Ledger The subsidiary ledger is a ledger containing a separate page or card for each client or other person for whom funds are held in trust, showing dates of receipts and disbursements, with up-to-date balances. A subsidiary ledger enables the attorney to know at a glance what funds are held for a given client and to provide the client with an accounting on request. It probably is impossible to adequately maintain an IOLTA or other trust account without keeping a detailed receipts and disbursement journal, described above, and without maintaining subsidiary ledgers. A subsidiary ledger should show a zero balance when the representation is concluded. 4. What Funds Must be Deposited Into the Trust Account? A. Any Funds Received by the lawyer B. Any Funds that don t belong to the lawyer 5
6 Funds Deposited into Trust Account 1. all funds given to the lawyer by the client that are to be applied against future legal fees; 2. all funds placed with the lawyer for present or future use on the client s behalf or at the client s direction; 3. all funds received by the lawyer for future litigation expenses; and 4. all funds received by the lawyer for the benefit of the client or his designees. Funds that may not be put in the Trust Account Funds that belong to the lawyer or law firm are not escrow funds. Such funds may not be held in the escrow account unless they have been placed there to pay bank charges or the lawyer s entitlement to them is disputed by the client. Rule 1.1.5(a)(3). Frequently a lawyer will receive funds that belong in part to the lawyer and in part to the client. Once a deposit has cleared the bank, the portion belonging to the lawyer or law firm must be withdrawn. Rule 1.15(a)(3)(ii). This includes all earned legal fees and all costs expended or accrued. 5. Bank Charges $25/mo if Lawyer s IOLTA Acct goes below $5000. A. Lawyer may deposit $5K to maintain min balance. B. Lawyer may not do that b/c it is commingling. 20 6
7 Bank Service Fees the lawyer may deposit enough of his/her own funds to cover bank charges made for administration of the escrow account (See LEO 15) or to maintain a minimum balance to avoid the imposition of service fees, provided the funds deposited are no more than necessary to do so. Rule 1.15 (a)(3)(i). 6. Client owes a third party Judgment Creditor $K. Lawyer is holding proceeds of a sale of Client s business in trust. May the JC garnish Lawyer s trust account? A. Yes. B. No. Garnishment of Trust Account Yes, the funds in the trust account belong to the client and are subject to garnishment. Marcus, Santoro & Kozak v. Wu, 274 Va. 743, 652 S.E.2d 777 (2007) (affirming trial court s judgment that client funds held in trust by two law firms were subject to garnishment and ordering lawyers to cease drawing funds out of trust to pay earned fees). 7
8 7. Lawyer settles Client s PI case for $90K. Lawyer s agreement not clear whether lawyer s 1/3 fee is taken before or after expenses deducted. Lawyer claims $30K, but Client asserts Lawyer gets $25K. A. Lawyer may w/d $25K. B. Lawyer must hold $30K in trust until dispute resolved. 20 Disputed Funds Lawyer need only hold disputed funds in trust. Any portion of the funds finally determined to belong to the lawyer must be promptly withdrawn from the trust account. Rule 1.15 (a)(3)(ii) A contingent fee agreement shall state in writing the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal, litigation and other expenses to be deducted from the recovery, and whether such expenses are to be deducted before or after the contingent fee is calculated. Rule 1.5(c) amendments to Rule 1.15 add a new level of obligation for a lawyer to protect client funds against which a general creditor has a claim A. True B. False 8
9 Third Party Claims False. Comment 4 to Rule 1.15 states no duty to protect funds on behalf of client s general creditors who have not perfected a valid lien or interest in funds held by lawyer. Third Party Liens 9. Lawyer has copy of consensual chiropractor s lien that client signed however client has directed lawyer to ignore. Client disputes amount owed to chiropractor. There are not enough funds recovered by lawyer to pay chiropractor and have funds left for client so lawyer can do this: Consensual Liens A. Pay Chiro s lien in full. B. Split the difference and make both parties unhappy. C. Hold funds until dispute resolved. D. Call Ethics Counsel 20 C. D. 9
10 Consensual Liens Lawyer is obligated to protect consensual third party liens. LEO 1747; Cmt. 4 to Rule Cannot disregard chiro s lien even if client insists. Cannot compromise lien unless chiro and client consent. Best course of action is to hold funds in trust until dispute resolved or interplead funds into court.. Client wants to use credit card for payment of advanced fee. Credit card company wants to charge merchant transaction fee and deduct fee from lawyer s trust account. Can lawyer do this? A. Yes B. No. Credit Cards The lawyer can maintain a sum of money on deposit in his/her trust account to cover credit card merchant fees. The lawyer may pass along merchant fees associated with credit card use to the client with disclosure and consent. These fees may be deducted from the lawyer s escrow account; however, when possible, a lawyer should contract with the financial institution that all debits of fees and costs associated with credit card use, including chargebacks, be made from the lawyer s operating account. (See LEO 1848).
11 11. Lawyer holds unclaimed funds in his trust account. Lawyer may: A. Transfer funds to operating account. B. Transfer funds to LSCV under IOLTA C. Report and Transfer Funds to State Treasury 0 of C. Unclaimed Funds A is wrong b/c funds belonged to the client not the lawyer B is wrong b/c there is no provision for this under IOLTA C is correct b/c abandoned property held by a fiduciary escheats to the Commonwealth. Unclaimed Trust Funds Attorney must exercise reasonable diligence in attempting to contact and disburse trust funds to persons entitled to receive them Once the attorney determines that property is either unclaimed or abandoned as defined by the Uniform Disposition of Unclaimed Property Act, the attorney must dispose of the funds in accordance with the directives of this statute. LEOs 1644,
12 12. Interest on Trust Funds Lawyer has ceased practicing law but owns as a sole shareholder a title company that handles funds for real estate closings. May the lawyer s title agency earn and keep interest earned on funds held to close real estate transactions? Interest Earned on Funds Held in Escrow A. Yes, b/c the lawyer is not practicing law and not subject to the RPC. B. No, interest cannot be taken by lawyer s title agency. 0 of Interest Earned on Funds Held in Escrow No. A settlement agent may not retain any interest received on funds deposited in connection with any escrow, settlement, or closing. An attorney settlement agent shall maintain escrow accounts in accordance with applicable rules of the Virginia State Bar and the Supreme Court of Virginia. Va. Code (C). The Committee has previously opined that it is improper for a lawyer or law firm to earn interest or receive any dividends for the lawyer's or firm's benefit on clients' funds held in an attorney trust or escrow account. LEOs 1469, 831,
13 13. Attorney s Lien Claimed by Client s Former Lawyer Prior to retaining you as counsel, your client and her husband had retained another attorney. After they discharged the first attorney and retained you, the first attorney notified you of a lien for $375 which he claimed was the value of his services. As far as you know, he never notified the defendant's insurance company of his lien, and the settlement check was made payable to you and your client only. You have now disbursed the proceeds to your client while withholding $375 in your trust account. The lawyer should: A. Disburse the $375 to Client if Client so directs. B. Continue to hold the funds in trust pending resolution of the notice issue. 0 of Attorney s Lien Unless Lawyer can determine that the former attorney is NOT entitled to the funds, because of failure to provide notice, the safest course of action is to hold the funds in trust until the notice issue is resolved and the validity of the lien is determined. If the lawyer believes in good faith and after due diligence that the former lawyer is not entitled to payment, the lawyer may disburse those funds to the client. See Comment 4, Rule 1.15; LEO
14 14. A lawyer may be suspended from practice for mishandling client funds even if client suffers no loss. A. True B. False 0 of 30 Mishandling Client Funds True. Loss of money is not a prerequisite to suspension of an attorney s license for mishandling client funds. Whether the attorney s failure to pay third party entitled to funds resulted from inadvertence or from intentional wrongdoing, is immaterial. Delk v. Virginia State Bar, 233 Va. 187, 355 S.E.2d 558 (1987). 15. Client agrees to pay lawyer $5,000 for this matter which is a non refundable flat fee earned upon receipt. a) Unethical b) OK a) b) 14
15 Fixed Fee Fixed Fee. The term fixed fee is used to designate a sum certain charged by a lawyer to complete a specific legal task. Because this type of fee arrangement provides the client with a degree of certainty as to the cost of legal services, it is to be encouraged. A fixed fee is not earned until the representation is concluded. LEO Alternatively, the lawyer and client may agree that portions of the advance fee are earned at various points in the representation or when specific tasks are completed. Fixed Fee A fixed fee is an advanced legal fee. It remains the property of the client until it is actually earned and must be deposited in the attorney's trust account. If the representation is ended by the client, even if such termination is without cause and constitutes a breach of the contract, the client is entitled to a refund of that portion of the fee that has not been earned by the lawyer at the time of the termination. LE Op Fixed Fee In such circumstances, what portion of the fee has been earned requires a quantum meruit determination of the value of the lawyer's services in accordance with Heinzman v. Fine, Fine, Legum and Fine, 217 Va. 958 (1977) and County of Campbell v. Howard, 133 Va. 19 (1922). LEO Any fee agreement that declares advanced fees to be non refundable is an unreasonable fee and violates the Rules of Professional Conduct. 15
16 16. Client agrees that lawyer is entitled to a 33 1/3% contingency fee however if lawyer is terminated prior to completion of case then case reverts to hourly rate of $250 an hour for work completed by lawyer. a) Unethical b) OK a) b) Contingent Fees When a client discharges a lawyer before the lawyer has recovered money for the client, the contract is a nullity and the lawyer may only recover on a quantum meruit basis the reasonable value of the services up to the date of termination. A conversion clause of this sort is improper according to LEO 1812 because the language is ambiguous. Is the conversion clause attempting to establish an alternative contractual hourly fee arrangement or an agreed upon hourly rate to be used in employing a quantum meruit calculation? Rule 1.5(b) requires that the fee arrangement be adequately explained to the client, preferably in writing. This clause fails to meet this requirement. 17. Client agrees that if lawyer fires client prior to completion of the matter lawyer is entitled to quantum meruit value of lawyer s services rendered to date. a) Unethical b) OK a) b) 16
17 It s All Good! The End! 17
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