CLIENT TRUST ACCOUNTING
|
Client A |
$1,000 |
||
Client B |
2,000 |
||
Client C |
1,500 |
Client D |
      500 |
Total |
$5,000 |
If you write a check for $1,500 from the client trust bank account for Client D, $1,000 of that check is going to be paid for by Clients A, B and C. The funds you are holding in trust for them are being used for Client D’s expenses. You should have a total of $4,500 for Clients A, B and C, but you only have $3,500 left in the trust account.
There’s No Such Thing As a Negative Balance
Even though improper, it’s not uncommon in personal checkbooks for people to write checks against money they haven’t deposited yet or money deposited that is uncollected, and show this as a negative balance. In client trust accounting, there should never be a negative balance. A negative balance is at best a sign of negligence and, at worst, a sign of theft. (Don’t think that because you have "automatic overdraft protection" on your client trust bank account and the check doesn't bounce, you have fulfilled your client trust bank account responsibilities.) In client trust accounting, there are only three possibilities:
You have a positive balance (while you are holding money for a client);
You have a zero balance (when all the client’s money has been paid out); or
You have a negative balance less than zero and a problem.
Rule 1.15(d)(9)(c) states, "No funds disbursed for a client or third party must be in excess of funds received from that client or third party. If, however, through error, funds disbursed for a client or third party exceeds funds received from that client or third party, the lawyer shall transfer funds from the non-fiduciary account in a timely manner to cover the excess disbursement." So, as soon as you recognize that an excess disbursement has occurred, even though it may not have created a negative balance, make an immediate transfer into the trust account to cover the excess disbursement. You may have paid a client too much but, don't wait until you recover from the client.
Disbursing Funds From Your Client Trust Account
Rule 1.15 states that "A lawyer shall not disburse fiduciary funds from his or her client trust account(s) unless the funds deposited in the account to be disbursed are good funds as hereafter defined. "Good funds" shall mean:
1) cash
2) electronic fund ("wire") transfer
3) certified check
4) bank cashier's check or treasurer's check
5) U.S. Treasury or State of Delaware Treasury check
6) check drawn on a separate trust or escrow account of an attorney engaged in the private practice of law in the State of Delaware held in a fiduciary capacity, including his or her client's funds
7) check of an insurance company that is authorized by the Insurance Commissioner of Delaware to transact business in Delaware
8) check in an amount no greater than $2,000
9) check greater than $2,000 which has been actually and finally collected and may be drawn against under federal or state banking regulations then in effect
10) check drawn on an escrow account of a real estate broker licensed by the State of Delaware up to the limit of guarantee provided per transaction by 24 Del. C. 2921
If you have any doubt whether or not you are disbursing "good funds", contact your bank.
You Can’t Play the Game Unless You Know the Score
If a computer trust accounting system is set up properly, every time you make a deposit or issue a check on behalf of a client, the transaction is recorded in the client's account. The client's balance is increased when a deposit is made and decreased when a check is issued. However, you should recognize that a transaction can be entered incorrectly. If the amount is entered incorrectly, it should be found when you balance your bank statement and compare that balance to the total client balance. If a transaction is entered to the wrong client account, it won't affect the total client balance. It is advisable that attorneys review client accounts at the end of each month, after reconciling, to make sure each client balance is correct. Also, this monthly review should alert you to any client balances that should have been disbursed, but weren't.
Since "you can’t spend what you don’t have" (see Key Concept 2), you should check the balance in the client’s account before you issue any client trust bank account checks for that client. That way, if your records are accurate and up-to-date, you won't pay out more money than the client has in the account.
The Final Score Is Always Zero
The goal in client trust accounting is to make sure that every dollar you receive on behalf of a client is ultimately paid out. What comes in for each client must equal what goes out for that client; no more, no less.
Many attorneys have small, inactive balances in their client trust bank accounts. Sometimes these balances are the result of a mathematical error or sometimes they are part of a fee you forgot to take. Also, a client balance may show zero but, a check you wrote never cleared or wasn't cashed, so the money is still in the bank balance.
Whatever the reason, as long as the money is in your client trust bank account, you are responsible for it. The longer these funds stay in the bank, the harder it is to account for them. Therefore, you should take care of those small, inactive balances as soon as possible, including, if necessary, following up with payees to find out why a check hasn't cleared.
If you have made a good faith effort to locate the client or third party and are still unable to pay out the funds, and the client balance is at least five years old, the unclaimed monies escheat to the state.
Always Maintain an Audit Trail
An "audit trail" is the series of bank-created records, like cancelled checks, bank statements, etc., that make it possible to trace what happened to the money you handled. An audit trail should start whenever you receive funds on behalf of a client and should continue through the final check you issue against them. Without an audit trail, you have no way to show that you have taken proper care of your clients’ money, or to explain what you did with the money if any questions come up. The audit trail is also an important tool for tracking down accounting errors. If you don’t maintain an audit trail, you will find it hard to correct the small mistakes, like errors in addition or subtraction, and the big mistakes, like miscredited deposits, that can happen when you handle money.
The key to making a good audit trail is being descriptive. Let’s say you are filling out a deposit slip for five checks relating to three separate clients. All the bank requires you to do is write in the bank identification code for each check and the check amounts. This doesn't identify which client the money belongs to. If you include the name of the client and keep a copy or make a duplicate, you will know which client the check was for, which is the purpose of an audit trail. That will make it easy to answer any questions that come up, even years later.
By the same token, every check you write from your client trust bank account should indicate which client it’s being written for, so that it’s easy to match up the money with the client. That means you should NEVER make out a client trust bank account bank check to cash, because there’s no way to know later who actually cashed the check. If you are handling more than one case for the client, indicate which matter the payments and receipts relate to on your checks and deposit slips.
Opening A Client Trust Bank Account
Money or other property entrusted to an attorney for a specific purpose, including advances for costs and expenses, is held in trust and must be applied only to that purpose.
In other words, whenever you receive or hold money for clients – or any other persons with whom you have a fiduciary relationship – you have to deposit the money into a specifically labeled client trust bank account. As we detail below, client trust bank accounts are a special kind of bank account. Bankers who have experience with them can help you set up and administer your client trust bank account properly. When you first open the account, make sure the bankers you’re dealing with know what a client trust bank account is; if they don’t, ask to work with someone else.
General Do's and Don’ts
Client trust accounts:
Must be maintained in Delaware. If funds are to be held outside of Delaware, you must obtain the consent of the client or third party.
Must be maintained in a bank that is regulated by a federal or state agency and has its deposits insured by the federal government.
Should be maintained in a financially stable bank. This isn't a rule; it’s common sense. As your clients’ fiduciary, if the bank you’ve put their money in goes under, you’re in for some trouble. Even if your bank is federally insured, that insurance only covers $100,000 per client. (The per-client limit includes all money the client has on deposit at that bank. In other words, if you are holding $80,000 for a client at a certain bank, and the client has another $40,000 on deposit at the same bank, only $100,000 of the $120,000 the client is holding in the bank is covered.) Even if all your clients’ money is covered, by the time the FDIC pays your clients their money, your clients could have, for example, missed a business opportunity. (As we will discuss later, if your bank goes under, you also may have a hard time getting copies of your client trust bank account records.) Like most client trust accounting problems, the answer to this is simple; keep your client trust bank accounts in banks that you’re reasonably sure are financially secure.
Must be identified as a client trust bank account. Rule 1.15(d)(2) says that the name of any account where you keep your clients’ money must clearly tell the bank, your clients, your employees, the people you pay out your clients’ funds to and everyone else that it is a client trust bank account. Whatever name you choose, you can avoid all kinds of problems if the name of the account is prominently displayed on all your client trust bank account checks, deposit slips and other documents. Make sure that papers relating to your client trust bank account look different from those relating to your personal account or your general office account. For example, you can have your client trust bank account checks printed on paper that’s a different color than your other checks.
Should limit accessibility of funds. Ideally, you should be the only person authorized to sign client trust bank account checks and otherwise pay out client funds. However, for practical reasons, some practitioners make their secretaries or bookkeepers authorized signatories. Since you are individually, personally accountable for all client funds you receive or hold in trust, and since this accountability can’t be delegated to anyone else, allowing other people access to your client trust bank account is risky. By the same token, you should never pre-sign client trust bank account checks and leave them for employees to issue.
Should NOT have ATM access. Your fiduciary responsibility is to account for your clients’ money. When you write a client trust bank account check, you create an audit trail that makes it easy to trace who the money came from and where it went. (See Key Concept 7, Always Maintain an Audit Trail.) A client trust bank account with ATM access makes it possible for you – or anyone who knows the account code – to withdraw your clients’ money in cash, and it’s very hard to account for cash. ATM withdrawals are an audit trail disaster. When you make an ATM withdrawal, the only record of what happened to the money is a little slip of paper that shows the date and the amount of the withdrawal; there’s nothing that shows which client’s money was withdrawn, who withdrew the money or who the money was paid to. This includes withdrawing your fees, since there’s no indication of which client’s fees you were paying. Even if you put all the descriptive information on an ATM receipt, it won’t prove to your clients or the Auditor for the Lawyers' Fund for Client Protection what happened to the money.
Should NOT include automatic overdraft protection. "Automatic overdraft protection" means that whenever you write a check for more money than is in your account, the bank will automatically make you a personal loan to cover the difference and keep the check from bouncing. There are two reasons why this shouldn't be a feature of your client trust bank accounts.
The first reason is that you should never have insufficient funds in your client trust bank account in the first place; if you do, you’re in violation of your professional responsibilities. The second reason is that you can’t deposit your personal funds into your client trust bank account. If you have automatic overdraft protection on your client trust bank account, whenever you overdraw the account the bank will give you a personal loan to cover the difference. In effect, this means the bank is depositing your personal funds into your client trust bank account. (The same difficulties are also found in the so-called "instant credit" arrangements where the bank agrees to immediately credit accounts for deposits while the bank waits for the funds from another financial institution.)
Client funds fall into one or two categories:
Large and/or long-term: The attorney has a fiduciary obligation to hold these funds in separate interest-earning accounts for the benefit of the client.
Small and/or short-term: Any income these funds would generate would be negligible and not warrant the setting up of separate client accounts or the administrative cost required to keep track of and credit the income to each client.
Rule 1.15(f) makes clear, with respect to interest earned on client funds that "the lawyer shall have no right or claim to such interest."
When a client gives you a "nominal" amount of money, or you will be holding a client’s money for a "short period of time," Rule 1.15(g) states that these funds shall be maintained in a "pooled interest-bearing depository account" which is set up so that the interest the account earns will be paid to the IOLTA program administered by the Delaware Bar Foundation.
The idea behind the Delaware Bar Foundation is that attorneys often hold amounts of money for clients that are so small or will be held for such short periods of time that the interest the money could earn for the client if it were held in a separate interest-bearing account for that client would be less than the cost involved in earning or accounting for the interest. However, when these amounts of money are held in a pooled client trust bank account, they collectively can generate substantial interest. The Delaware Bar requires that this aggregate interest, which would otherwise benefit only the bank, is used to ensure that poor Delawarians have access to legal services.
Rule 1.15(a) states, "A lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property." Here's some specific examples:
* check from client covering an advance for costs and expenses
* money that belongs to the client outright (e.g., funds from the sale of client property)
* money in which you and your client have a joint interest (e.g., settlement proceeds that include your contingency fee)
* attorney's own funds in an amount necessary to cover bank service charges, not to exceed $500 (not necessary in an IOLTA account since service charges are taken out of the interest the account earns)
* retainer, if it represents the payment of an advance fee (see Rule 1.5(f), amended 1/1/99, for other requirements on retainers)
* single check received from a client that includes payment for an earned fee and for funds to be held for the client (after deposit a check can be written for the earned fee portion)
Other than bank service charge money, no funds that belong to the member or the law firm can be deposited into your client trust bank account. Unless one of your clients has an interest in the money, keep it out of your client trust bank account. NEVER put your personal or office money, including funds like employee payroll taxes, into your client trust bank account. Employee tax withholdings are trust funds, but they are not client funds and, therefore, should not be put into the client trust fund account.
Before you write your first client trust bank account check, there are things you should know.
What Payments CAN You Make?
You can make any payments on behalf of your client out of your client trust bank account, including paying client costs and expenses (e.g., court filing fees or deposition transcript costs), disbursing settlement proceeds, paying yourself earned and undisputed legal fees, etc. You may also pay bank charges for the account only from the funds you have placed in the account for this purpose. These are the only payments you are allowed to make out of your client trust bank account.
Bank charges. For individual client trust bank accounts, paying bank charges is simple: since all of the charges are incurred for the client for whom you have the account, you can pay the charges out of that client’s money.
For pooled client trust bank accounts, paying bank charges is a little more complicated. When the bank charges for a service (e.g., for wiring money) for a specific client, you can treat the charge as you would any other cost and pay for it out of money you are holding for that client in the account. But some charges, like printing checks, aren't specific to a certain client. Like all your other general operating expenses, you – not your clients – have to pay these charges. Therefore, a nominal amount of your money (no more than $500) may be kept to cover bank charges.
What Payments CAN’T You Make?
You can’t make payments out of your client trust bank account to cover your own expenses, personal or business, or for any other purpose that isn't directly related to carrying out your duties to an individual client. You also can’t pay money out of your client trust bank account on behalf of a client if the client doesn't have money available in the account to cover those payments. Remember the final score is always zero. Check the account balance before disbursement to be sure.
Rule 1.15 does not mandate any particular client trust accounting system. Paragraph (d) states, "A lawyer engaged in the private practice of law must maintain financial books and records on a current basis." As long as you get the results and keep the records that the Rule requires, you are in compliance.
Even though it's more time-consuming and inefficient, you can use a manual system. Every check and every deposit transaction would have to be recorded twice, once in cash receipt and cash disbursement journals and, then, in client ledgers. In addition, in a manual system, monthly journal and ledger totals have to be added and balanced. But if you use the right computer software, set it up properly, review the results each month and make adjustments on a timely basis, you should always be in compliance with those related recordkeeping requirements. With a computer system, particularly if you print checks on the computer, you only enter transactions once and the computer does all the rest automatically - totals monthly journals, posts to client accounts and reconciles the bank statement to the check register (this last procedure requires the input of cleared checks and deposits). And, the balance in the client trust bank account should always agree with the total owed to clients.
If you're in the process of selecting a computer system for your law office and have any questions, call the office of the Lawyers' Fund For Client Protection, (302)577-7034, and ask to speak to the Auditor.
How Long Must You Keep Records?
Rule 1.15(d) requires you to keep trust accounting records for five years after you pay out the money the records refer to. To be on the safe side, you should keep the records of all money you handled for a client for a minimum of five years after you closed that client’s case, unless they relate to a matter under disciplinary investigation. In that case, you must retain the records until the investigation is concluded.
Where Can You Keep Your Records?
If you have a practice involving a lot of clients, you have to hold on to a lot of paper. Since office space is limited and expensive, you may find it makes more sense to keep some client trust accounting records off-site rather than in your office. That’s OK, as long as you can produce the records within a reasonable time after receiving notice that you’re the subject of a disciplinary inquiry. If you keep orderly files, label each box with the names of the client trust bank accounts the records apply to and the dates covered by the records, and keep an index listing the names of all the boxes you send into storage, this won’t be a problem. If you don’t, you’re going to have to retrieve all the boxes from storage and sort through all the records they contain in order to respond to the disciplinary inquiry. This can be expensive, time-consuming, and, if you have to request a time extension, can create the wrong impression.
What If You Have a Computerized System?
Even if you have a computerized accounting system, you still have to keep hard copies of all the records required by the Rule, including bank-created records (Rule 1.15(d)(10)). You can use computer printouts instead of handwritten ledgers for the records you are responsible for creating, but just having the data on a disk is not acceptable. (It’s a good idea to have these printouts dated and signed by the preparer to show when and by whom they were generated.)
If you’re using a computerized accounting system, you should remember that computer data can be lost through natural disaster, like fire, power or equipment failure and human error. For your own protection, make hard copies regularly and have all your computer records regularly backed up onto disks.
What Bank-Created Records Do You Have to Keep?
Rule 1.15 requires you to keep two kinds of bank-created records: client trust bank account statements and cancelled checks. Some attorneys don’t take their duty to keep bank-created records seriously because they can always get copies from their bank. This is a clear violation of Rule 1.15. If your bank fails, merges with or is taken over by another bank, you may find that copies of your four-year-old cancelled client trust bank account checks just aren't available. In addition, some banks no longer routinely provide cancelled checks to customers. Be sure that the bank in which your client trust bank account is located provides you with cancelled checks.
You must also keep your client trust bank account deposit slips and checkbook stubs (unless you're using computer checks) so you will have a complete audit trail. These records will make it much easier to balance your books and to show what you did with your clients’ money.
Rule 1.15(d)(8) requires the following three end-of -month trust accounting procedures:
1) The client trust bank account must be reconciled to the check register balance using the format illustrated below or an equivalent format.
Balance per bank statement |
$14,994.95 |
||
Add - deposits in transit (deposits entered in check register, |
2,500.00 |
||
Less - outstanding checks (checks entered in check register, |
  -3,225.00 |
||
Balance per check register (reconciled bank statement) |
$14,269.95 |
The detail of each deposit in transit should indicate the date and amount. The detail of each outstanding check should be identified by date, check number, payee and amount.
Rule 1.15(d)(7) discusses the requirement to balance monthly cash transactions to the ending check register balance. This only relates to a manual system in which cash receipts and cash disbursements totals are derived separately and a control procedure is necessary to ensure that the end-of-month cash balance agrees with the beginning cash balance plus cash receipts minus cash disbursements for the month. This control procedure is not necessary in a manual system if a general ledger is maintained and a cash account balance is part of a trial balance. The control procedure is also not necessary in a computer system because cash transactions are only entered once. In a manual one-write system, deposits and checks are entered once; however, journal and ledger totals are manually calculated, so the control procedure is necessary.
2) From the client ledger cards, in a manual system, create a list after the last transaction for a calendar month has been recorded and end-of-month client balances have been calculated. Write down the ending balance held for each client as follows:
Client A |
$ 50.00 |
||
Client B |
89.95 |
||
Client C |
250.00 |
||
Client D |
2,000.00 |
||
Client E |
80.00 |
||
Client F |
3,000.00 |
||
Client G |
800.00 |
||
Client H |
    8,000.00 |
||
Total |
$14,269.95 |
In a computer system, print a summary listing that shows each client balance and the total.
The listing must be done every month, it cannot be an adding machine tape and it must be retained as part of your permanent records. It's part of your audit trail, not just if you're audited, but for your own internal control. If you, the client, executor, auditor or anyone else ever questions a balance, you'll have the documentation necessary to support your record of the client transactions and the ending balance.
3) The total of the listing of client balances total should then be compared with the reconciled bank balance. The two should be the same; if not, (in a manual system) check the additions and subtractions on both the ledger cards and the journals. Make sure that transactions for the next month are not included in what you are trying to balance and that checks and deposits are recorded in both places. In a computer system, check any unusual transactions. For example, there may be an adjustment to a client's account that does not affect the cash balance. Remember, client accounts should only reflect cash balances.
After making sure there are no calculation or posting entry errors, you may have an overage or shortage variance. If the reconciled cash balance is greater than the total of client funds, there is an overage, and the assumption is, unless proven otherwise, that the overage represents unidentified client funds. If this situation exists, an effort must be made to immediately identify these funds so that they can be returned to the clients or third parties. If the reconciled cash balance is less than the total of client funds, there is a shortage and a deposit to the trust account must be made immediately to cover this shortage.
The above three end-of -month trust accounting procedures are also required for a client bank account used exclusively for real estate transactions when there is positive reconciled bank balance indicating that not all client funds received have been disbursed. There is one exception. If a bank account is used exclusively for real estate settlement transactions, cash receipts and disbursement journals are not required; therefore, the control procedure noted under Monthly Reconciliation (1) is not required.
Every year, all Delaware lawyers have to complete a Certificate of Compliance, which is included with the Annual Registration Statement filed with the Supreme Court. All of the significant recordkeeping provisions in rule 1.15 (and many of the procedures in this handbook) are contained on the Certificate of Compliance. If a lawyer can't respond in the affirmative, indicating that he or she is adhering to each provision, then the lawyers faces a compliance audit and possible disciplinary action for a violation of the Rules of Professional Conduct.
The Comment defines the terms used in the Rule. Lawyers should review this section in conjunction with reading this handbook. It will help lawyers, secretaries and office assistants involved in trust account recordkeeping understand the bookkeeping terms used in the Rule, which should lead to more effective compliance.
THE LAWYERS' FUND FOR CLIENT PROTECTION of the Bar of Delaware gratefully acknowledges to The Florida Bar the use of the Handbook On Client Trust Accounting For Florida Attorneys, a publication of The Florida Bar, which served as a basis for this handbook. Also, we acknowledge to the State Bar of California whose exhaustive book on client trust accounting and Attorney Ethics of the Supreme Court of New Jersey was used by The Florida Bar. Although the client trust accounting rules in Delaware may differ from those in Florida, California and New Jersey, the same basic principles of accounting apply. Portions of this handbook are copyrighted by the State Bar of California and used with their permission.
Lawyers' Fund for Client Protection of the Bar of Delaware
200 West Ninth Street, Suite 300-B, Wilmington, DE 19801
Phone: (302) 577-7034 * Fax: (302) 577-1006 * E-mail: Bunny.James@state.de.us