by
Siama Y.
Chaudhary, Assistant Director
Minnesota Office of Lawyers Professional Responsibility
Reprinted
from Minnesota Lawyer (August 4,
2008)
The Lawyers Professional Responsibility Board first
issued written advisory opinions to guide the conduct of Minnesota lawyers more
than three decades ago.Ftn 1
The Board eventually issued 19 opinions.Ftn 2
In In re
Admonition Issued in Panel File No. 99-42, the Minnesota Supreme Court held
that attorneys are not subject to professional discipline solely for violations
of Board opinions. In light of that
holding, the Board repealed or incorporated into the Minnesota Rules of
Professional Conduct all but five of its 19 opinions. The Board last issued an opinion in 1999 and
the topic of issuing new opinions has not been revisited until recently.
In March 2008, the Board established a new Opinion
Committee and charged it with the task of revisiting the question of whether
the Board should again issue written advisory opinions to guide the bar. At the June meeting, the Board adopted the
committee’s recommendation that the Board resume issuing written opinions.
Because the Office of Lawyers Professional
Responsibility issues informal advisory opinions upon request, the Board will
limit its opinions to matters of importance and general application to the bar
where guidance is deemed helpful. Where
appropriate, the Board will consult with interested or affected persons and
persons with expertise on the particular subject matter under
consideration. The Board then will
publish for comment all proposed opinions prior to their formal issuance,
except in rare instances where such publication is considered unnecessary.
The Board’s Opinion Committee also examined whether
Appendix 1 to the Minnesota Rules of Professional Conduct should be amended to
allow for more flexibility in the use of electronic fund transfers from lawyer
trust accounts. Rule 1.15(i) authorizes
the Board to “publish annually the books and records required by [Rule
1.15](h).”Ftn 3 On Sept. 30, 2005, pursuant to Rule
1.15(i) the Board adopted Appendix 1.
Appendix 1, I(6), details the books and records
lawyers in private practice are required to keep for trust accounts. Appendix 1, I(6), as it existed prior to June
26, 2008, required that all disbursements from a trust account be made by check
“except when payment by check would be economically imprudent or when exigent
circumstances require a transaction by wire transfer.”
However, Rule 1.15(j), which states that “[e]very
check, draft, electronic transfer, or other withdrawal instrument or
authorization shall be personally signed or, in the case of electronic,
telephone, or wire transfer, directed by one or more lawyers authorized by the
law firm,” ostensibly permitted the use of electronic fund transfers, which
appeared inconsistent.
After research, the Opinion Committee recommended, and
the Board adopted, the following amendments to Appendix 1, I(6), effective June
26, 2008:
6. Bank statements, canceled checks or copies of
canceled checks if they are provided with the bank statements, bank wire or
electronic fund transfer confirmations and duplicate deposit slips. Cash fee payments must be documented by
copies of receipts countersigned by the payor.
Attorneys making deposits using substitute checks pursuant to the
Check Clearing for the 21st Century Act must request and retain image
statements from the bank for each such deposit. All disbursements must be by check, except
when payment by check would be economically imprudent or when exigent
circumstances require a transaction by wire transfer. For withdrawal by bank wire or electronic
fund transfer, an attorney or law firm must create a written memorandum
authorizing the transaction, signed by the attorney responsible for the
transaction. The bank wire or electronic
fund transfer must be entered in the check register and include all the
identifying information listed in paragraphs I(2)(b) and I(3)(a) of this
Appendix.
The amendments did away with the requirement that
disbursements be made by paper check except under limited circumstances. Moreover, and likely of particular import to
collection law firms, the amendments permit the use of substitute checks in
making deposits to a trust account.
Lawyers using bank wire and other electronic fund transfers are still
required to keep track of the same information that would be recorded with
traditional checks.Ftn 4
Ultimately, the purpose of the amendments is to allow
for more flexibility in the disbursement of funds from trust accounts while
ensuring accountability through proper recordkeeping.
_________________________
1 Rule
4(c), Rules on Lawyers Professional Responsibility, allows the Board to “from
time to time, issue opinions on questions of professional conduct.” Opinion 1 states, in part, “The Board and the
Supreme Court consider these opinions as rule interpretations that guide
attorneys’ professional conduct even though they are not binding on the Court.”
2 Board Opinions can be found online at http://www.mncourts.gov/lprb/opinions.html.
3 MRPC Rule 1.15(h) requires lawyers to maintain “books
and records sufficient to demonstrate income derived from, and expenses related
to, the lawyer’s private practice of law.”
4 The required information is found in Appendix 1,
I(2)(b), which states, “Each check entry must include the date the check was
issued, the payee, the amount, the identity of the client for whom the check
was issued (if not the payee), and the purpose of the check.”