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 Opinions are ethics advisory opinions issued by the Office of Legal Ethics Counsel to members of the Bar about Rule 4 (Rules of Professional Conduct), Rule 5 (Complaints and Proceedings Thereon), and Rule 6 (Fees to Practice Law) pursuant to Missouri Supreme Court Rule 5.30(c). Written summaries of select Informal Opinions are published for informational purposes as determined by the Advisory Committee of the Supreme Court of Missouri pursuant to Rule 5.30(c). Informal opinion summaries are advisory in nature and are not binding. These opinions are published as an educational service and do not constitute legal advice.

To request an Informal Opinion, please visit: https://mo-legal-ethics.org/for lawyers/requesting-an-informal-advisory-opinion/.

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