Informal Opinion Number: 940091

Reference Note: Effective July 1, 2016, subdivision 4-1.15(f) of Rule 4 was repealed and a new subdivision 4-1.15(f) adopted in lieu thereof. This opinion is based on Rule 4-1.15 in effect prior to that date.

Reference Note:  Rule 4-1.15 was amended, effective July 1, 2013.  This opinion is based on the rule in effect prior to that date.  Please see the July 1, 2013 version of Rule 4-1.15(e).

QUESTION: Attorney has a trust account which has been in existence for a large number of years. The trust account contains a significant amount of money for which the firm cannot account. Some of the funds cannot be attributed to a particular file, although there are some records which indicate that they do belong to a particular file. For the remainder of the funds, there is no record at all and it is possible that the money relates to amounts that should have been disbursed to the firm. What should the firm do with these funds? ANSWER: The amount which can be attributed to files, must be placed in a separate, interest bearing trust account and Attorney must continue to attempt to make appropriate disbursement of those funds. Attorney should maintain an accounting of the interest attributable to each file so that it can be disbursed once the client is identified and the funds are disbursed. The funds which are not attributable to a file, may not be disbursed to the firm unless the firm can establish that they are firm funds. In the absence of clear evidence to the contrary, funds in the trust account are presumed to be client funds. These funds should also be placed in a separate, trust account. The funds may not be distributed to the firm unless it is established that they are firm funds. The firm should maintain clear documentation to explain all of the steps taken, including the steps involved in the ultimate disbursement.

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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