Resource Page: Trust Account Resources And Resources For Accepting Payments By Credit Card

Informal Opinion 2022-09

QUESTION: Attorney has recently been notified by Bank of its receipt of a check that appears to be from the Attorney’s client trust account but is actually a fraudulent document from someone who tried to duplicate the check of Attorney’s trust account to access the funds. Bank advises Attorney that the current trust account should be closed, and that a new trust account should be opened with a different account number and with a different style of check. Attorney has outstanding checks payable to clients drawn on that trust account. What steps should Attorney take to ensure that this change of trust account is in compliance with the Rules of Professional Conduct?

ANSWER: Attorney should work together with Bank to ensure the security of the funds in the client trust account. One option may be to ensure that no checks can be drawn on the existing account without authorization from Attorney, and that only the outstanding checks payable to clients can be drawn on the existing trust account. With such safeguards in place, Attorney may leave funds in the existing trust account to pay the outstanding checks that have already been sent to clients. Another option is to move all funds in the existing client trust account to a new account, stop payment on the outstanding checks payable to clients, notify clients as to such, and reissue new checks payable to clients on the new client trust account. Other options may also be appropriate under the Rules of Professional Conduct, as determined by Attorney and in cooperation with the Bank. Regardless of the option taken to safeguard the funds in the client trust account and eliminate the threat, Attorney should ensure that there is appropriate record keeping pursuant to Rule 4-1.15(f), and that clients are not responsible for any service charges when trying to negotiate their outstanding checks. See Rule 4-1.15(b). Finally, Attorney should contact the Missouri Lawyer Trust Account Foundation to notify it of the change in the account and provide appropriate certification as to Attorney’s annual enrollment statement pursuant to Rule 4-1.15(h).

Informal Opinion 2022-08

QUESTION: May Attorney deposit a check into a trust account electronically by sending the bank a photo of the check through the bank’s website or application?

ANSWER: Attorney has an obligation under Rule 4-1.6(c) to make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, a client’s confidential information. So long as the bank’s website or application provides for reasonable security over the transmission of the check by photo, and appropriate trust account records can be maintained in accordance with Rule 4-1.15(f)(1), (2), (7), and (8), Attorney may deposit a check into a trust account electronically so long as the records of such deposit are sufficiently detailed as to each check deposited. See Rule 4-1.15(a)(4).

QUESTION: Can client fees and expenses be paid by credit card? If so, where should the funds be deposited?

ANSWER: Lawyers who accept payments by credit card should review Informal Opinion 2014-05.  Ideally, the lawyer will choose a credit card processing company that will allow the lawyer to deposit into the trust account advanced payments of fees and expenses and deposit into the operating account earned fees and reimbursements for expenses incurred. If that arrangement is not available, credit card payments should be deposited in the trust account.  Reasonably promptly after those funds become “good funds” per Rule 4-1.15(a)(6) and the guidance in Comment [5], the lawyer’s earned fees and any compensation for expenses already incurred should be distributed to the lawyer from the trust account. See Informal Opinion 2020-15.  Lawyers should be careful to ensure that debits or chargebacks for disputed credit card charges cannot be taken from the trust account.

Informal Opinion 2019-08

QUESTION: Attorney accepts payments from clients using credit cards. Is it permissible for Attorney to pass on the credit card processing fees to clients?

ANSWER: Attorney may pass on credit card processing fees to a client provided the charges are clearly communicated to the client in advance (ideally, at the outset of the representation), the additional charges reflect no more than the actual processing fees, the client gives informed consent to the arrangement (see Rule 4-1.0(e)), and the arrangement is consistent with the processor’s terms and conditions and with applicable law. If Attorney chooses to pay the credit card processing fee rather than pass the fee on to the client, Attorney must ensure that the processing fee is not deducted from Attorney’s trust account. Attorney is not permitted to deposit Attorney’s funds in the trust account for the purposes of paying credit card processing fees. See Rule 4-1.15(b). See also Informal Opinion 2014-05 regarding the ethics of accepting credit card payments for legal services.

Informal Opinion 2020-22

QUESTION: Attorney received notice that Client is disputing a credit card payment for legal fees. If Attorney wishes to dispute the chargeback, Attorney is required to provide documentation of legal services rendered to Client.  What information may Attorney provide?

ANSWER: Information relating to the representation of Client, including information about legal services provided and fees charged, may not be disclosed without the informed consent of Client.  See Rule 4-1.6; see also Informal Opinion 2015-09.  Rule 4-1.6(b)(3) permits a lawyer to reveal confidential information to the extent reasonably necessary to establish a claim or defense in a controversy between the lawyer and client, such as an action against a former client to collect a fee.  However, a credit card chargeback dispute is not such a controversy. See Rule 4-1.6, Comment [9].  To dispute the chargeback, Attorney is permitted to provide an affidavit or statement that professional services were provided to Client.  Attorney also may state that professional obligations prevent Attorney from providing additional information.  Attorney should ensure that chargebacks for disputed credit card payments cannot be processed as transfers out of the trust account.  Informal Opinion 2014-05; see Rule 4-1.15(b)(3).  To address the fee dispute, Rule 4-1.5(f) requires Attorney to conscientiously consider participating in the appropriate fee dispute resolution program.

Informal Opinion 2020-13

QUESTION: May Attorney maintain in the trust account funds belonging to Attorney or Attorney’s law firm to be used as a “cushion” to protect client funds in the event of a mistake or fraudulent transaction regarding the trust account?

ANSWER:  No.  Rule 4-1.15(b) allows a lawyer to “deposit the lawyer’s own funds in a client trust account for the sole purpose of paying financial institution service charges on that account, but only in an amount necessary for that purpose.”  Comment [6] to Rule 4-4.15 provides guidance that accurate records must be kept as to which part of the funds belong to Attorney.  Attorney would be engaging in prohibited commingling of funds if Attorney were to allow funds belonging to the law firm or to Attorney to be maintained in the trust account for any other purpose.  See In re Coleman, 295 S.W.3d 857, 866 (Mo. banc 2009).  Funds in the trust account belonging to Attorney must be disbursed to Attorney reasonably promptly after the fee is earned or the expense paid, in accordance with the guidance in Rule 4-1.15, Comment [6]. 

Informal Opinion 2020-14

QUESTION: Once Attorney has earned a fee or paid an expense such that funds in the trust account belong to Attorney, may Attorney pay personal or firm expenses directly from the trust account?

ANSWER: No.  A trust account is not to be used to pay a lawyer’s personal or business expenses.  See In re Coleman, 295 S.W.3d 857, 866 (Mo. banc 2009); see also In re Ehler, 319 S.W.3d 442, 450-451 (Mo. banc 2010). Once funds are “good funds” per Rule 4-1.15(a)(6) and Comment [5], any funds belonging to Attorney should be transferred reasonably promptly from the trust account to Attorney’s personal or business account.  Rule 4-1.15(a) and (c) and Comment [6].  Only then may Attorney use the funds for personal or business expenses. In re Coleman, 295 S.W.3d at 866.

Informal Opinion 2020-15

QUESTION: Attorney deposited a settlement check in the trust account.  When should Attorney distribute the client’s portion and Attorney’s fees from the settlement?

ANSWER: Rule 4-1.15(a)(6) prohibits Attorney from disbursing funds deposited in the trust account if Attorney has reasonable cause to believe the funds have not actually been collected by the financial institution and until a reasonable period of time has passed for the financial institution to collect the funds.  Comment [5] provides guidance that “good funds” should be distinguished from funds from a deposit that has “cleared.”  What constitutes a reasonable period of time may vary depending, but ten days after the date the deposit is recorded is presumed to be reasonable, unless Attorney has notice of a reason to wait longer on a specific deposit. A shorter period of time may be reasonable in some circumstances.  If Attorney has information that causes doubt about the collection of the deposit, Attorney should delay disbursement and take additional measures to ensure collection.  Rule 4-1.15, Comment [5].  Once Attorney has reason to believe the funds have been collected by the financial institution, Attorney should disburse the funds promptly to the client.  Rule 4-1.15(d).  As to disbursement of Attorney’s fees, Comment [6] provides it should occur “reasonably promptly” after the settlement funds in the trust account become “good funds,” the client has been billed, and the client has had an opportunity to dispute the disbursement or otherwise has agreed to the disbursement.  See Rule 4-1.15, Comment [6].  Disbursing Attorney’s portion of the funds within a period of one month shall be presumed to be reasonably promptly.  Rule 4-1.15, Comment [6].

QUESTION: Should flat fees be deposited in the trust account or in the operating account?

ANSWER: “Flat fees” are fees paid by the client in advance that cover the entire representation.  See Informal Opinion 2018-15.  Fees and expenses paid in advance, must be deposited in the trust account as required by Rule 4-1.15(c), except that an “advanced flat fee which does not exceed $2,000 . . .  may be deposited into another account.”  Rule 4-1.15(c).  The exemption in Rule 4-1.15(c) allowing deposit in another account of certain qualifying advanced flat fees is permissive, and lawyers may choose to deposit those fees in the trust account. Lawyers should review Informal Opinion 2018-15 for specific guidance regarding advanced payment of fees that exceed $2,000, installments of any amount toward an advanced flat fee of more than $2,000, and an advanced payment of $2,000 or less that constitutes both a flat fee and advance payment of expenses.

Informal Opinion 2018-01

QUESTION: Attorney is holding in a trust account funds belonging to a client who is now deceased. What should Attorney do with the funds?

ANSWER: Attorney must hold the funds in the trust account, make reasonable efforts to determine when an estate is opened, and then distribute the funds to the deceased client’s estate. If no estate is opened, Attorney may consider whether applicable law permits the opening of an estate to allow for distribution of the funds. If no estate can be opened, or if the amount of the former client’s funds is insufficient to justify the opening of an estate, and if disbursement cannot otherwise be made in accordance with other law or court order, Attorney should follow the procedure in Formal Opinion 118, which directs Attorney to proceed in accordance with Missouri’s Uniform Disposition of Unclaimed Property Act.

Informal Opinion 2018-12

QUESTION:  May Attorney accept payment of a client’s fee from someone other than the client? If so, to whom should Attorney refund any unearned fee at the termination of representation?

ANSWER: Attorney must not accept compensation for representing a client from someone other than the client (including a co-client or indemnitor) unless Attorney complies with Rule 4-1.8(f). The client must give informed consent, the arrangement must not interfere with Attorney’s independence of professional judgment or with the client-lawyer relationship, and the client’s confidential information must be protected as required by Rule 4-1.6. In obtaining the client’s informed consent, Attorney should discuss with the client all information that will allow the client to make an informed decision, including, but not limited to: to whom any necessary refund should be issued at the termination of representation; that Attorney will follow the procedure in Rule 4-1.15(e) and Comment [8] for the handling of disputed funds if both the client and the third-party payer claim an interest in the funds; and the possible impact on the representation if the payer demands a return of the funds before the scope of the representation is concluded. If the fee arrangement creates a conflict of interest for Attorney, Attorney must comply with Rule 4-1.7(b). It should be noted that not all conflicts of interest are consentable. See Rule 4-1.8, Comments [11] and [12].

Informal Opinion 2020-16

QUESTION: What action should Attorney take when Attorney has notice of an apparently valid lien against settlement funds in Attorney’s trust account and Client directs Attorney not to pay the lienholder from the settlement funds?

ANSWER: Attorney should promptly distribute any funds in which the interests are not in dispute; hold the disputed funds in trust; refrain from distributing the disputed funds until the dispute between Client and the lienholder is resolved; and, if necessary, file an action to have a court resolve the dispute.  Rule 4-1.15(e) and Comment [8]; see Informal Opinions 970075 and 20000023.

Informal Opinion 2020-17

QUESTION: Attorney is holding in the trust account funds to distribute to Client, but Client cannot be located for distribution. What should Attorney do with Client’s funds?

ANSWER: Attorney should continue to make reasonable efforts to locate Client so the funds can be distributed.  If the efforts are unsuccessful after a reasonable period of time, Attorney should hold the funds in an IOLTA or non-IOLTA trust account per Rules 4-1.15 and 4-1.155 and follow the requirements of Missouri’s Uniform Disposition of Unclaimed Property Act.  Formal Opinion 118; Informal Opinion 20000129.

QUESTION: Attorney is holding funds in the trust account, but Attorney is unable to determine to whom the funds belong. What should Attorney do with the funds?

ANSWER: Attorney should continue to make reasonable efforts to identify the client or third person to whom the funds belong so the funds can be distributed.  If the efforts are unsuccessful after a reasonable period of time, Attorney should hold the funds in an IOLTA or non-IOLTA trust account per Rules 4-1.15 and 4-1.155 and follow the requirements of Missouri’s Uniform Disposition of Unclaimed Property Act.  Formal Opinion 118; Informal Opinion 2011-01.

Informal Opinion 2020-19

QUESTION: May a nonlawyer be a signatory on Attorney’s trust account or authorize electronic transfers from the trust account?

ANSWER: Only a lawyer admitted to practice in Missouri or a person under the lawyer’s direct supervision is permitted to be an authorized signatory or to authorize electronic transfers from the trust account.  Rule 4-1.15(a)(3).  Comment [2] provides guidance that if nonlawyer access to the trust account is granted, it should be “limited and closely monitored by the lawyer.”  Comment [2] provides additional guidance that a Missouri 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 4-5.1 and 4-5.3.”  See also In re Farris, 472 S.W.3d 549, 561 (Mo. banc 2015).  Attorney should establish proper trust account policies and properly train and supervise nonlawyers and subordinate lawyers in the firm to ensure reasonable measures are being taken to ensure the trust account is being handled in a way that is compatible with Attorney’s professional obligations.  See Rules 4-5.1 and 4-5.3

Informal Opinion 2020-23

QUESTION: How can a lawyer determine if a particular financial institution is an approved institution for holding trust accounts?

ANSWER: A lawyer must hold property of clients or third persons that is in the lawyer’s possession in a client trust account located in an “approved institution.” Rule 4-1.15(a)(2). Approved financial institutions must be deemed as both “eligible institutions” per Rule 4-1.145(a)(5) and “approved institutions” by the Advisory Committee of the Supreme Court of Missouri. Rule 4-1.145(a)(2); see Rule 4-1.15(h). The Advisory Committee is responsible for publishing a list of approved financial institutions for lawyer trust accounts.  See Advisory Committee Regulation to Rule 4-1.15, paragraph (c).  The list of approved institutions is available on the Legal Ethics Counsel website.

For a complete list of approved institutions, Click Here.

QUESTION: Where can a lawyer find guidance about how to establish a trust account in an approved institution and obtain forms for opening an IOLTA account?

ANSWER: The Interest on Lawyer Trust Account program is administered by the Missouri Lawyer Trust Account Foundation.  Instructions and forms for opening an IOLTA account are available on the Foundation’s website at: www.moiolta.org.

QUESTION: How does a Missouri lawyer obtain an informal advisory opinion about the trust account rules (Rules 4-1.145 – 4-1.155) or other Rules of Professional Conduct?

ANSWER: Missouri lawyers may request an informal advisory opinion from the Legal Ethics Counsel.  Guidelines for requesting an informal advisory opinion, in writing or by telephone, are at: http://molegalethics.org/requesting-an-informal-advisory-opinion/. The Office of Legal Ethics Counsel may be reached by telephone at 573-638-2263.