IN THE SUPREME COURT OF THE STATE OF OREGON
|In the Matter of Amendment
to the OREGON RULES OF
|ORDER No. 05-053
ORDER AMENDING OREGON
RULES OF PROFESSIONAL
CONDUCT 1.15-1 AND 1.15-2
At its public meeting on October 11, 2005, the court considered and approved certain amendments to Rules 1.15-1 and 1.15-2 of the Oregon Rules of Professional Conduct.
IT IS HEREBY ORDERED that the following amendments to Rules 1.15-1 and 1.15-2 of the Oregon Rules of Professional Conduct are approved and effective December 1, 2005 (new text in boldface; deleted text in brackets and italics).
Rule 1.15-1 Safekeeping Property
(a) A lawyer shall hold property of clients or third persons that is in a lawyer's possession separate from the lawyer's own property. Funds, including advances for costs and expenses and escrow and other funds held for another, shall be kept in a separate "Lawyer Trust Account" maintained in the [state] jurisdiction where the lawyer's office is situated [, or elsewhere with the consent of the client or third person]. Each lawyer trust account shall be an interest bearing account in a financial institution selected by the lawyer or law firm in the exercise of reasonable care. Lawyer trust accounts shall conform to [Rule 1.15-2] the rules in the jurisdictions in which the accounts are maintained. Other property shall be identified as such and appropriately safeguarded. Complete records of such accounts funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation.
(b) A lawyer may deposit the lawyer's own funds in a lawyer trust account for the sole purpose of paying bank services charges or meeting minimum balance requirements on that account, but only in an amount necessary for [that] those purposes.
(c) A lawyer shall deposit into a lawyer trust account legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred.
(d) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.
(e) When in the course of representation a lawyer is in possession of property in which two or more persons (one of whom may be the lawyer) claim interests, the property shall be kept separate by the lawyer until the dispute is resolved. The lawyer shall promptly distribute all portions of the property as to which the interests are not in dispute.
Rule 1.15-2 IOLTA Accounts and Trust Account Overdraft Notification
(a) A lawyer trust account for client funds that cannot earn interest in excess of the costs of generating such interest ("net interest") shall be referred to as an IOLTA (Interest on Lawyer Trust Accounts) account. [A lawyer or law firm establishing an IOLTA account shall so advise the Oregon Law Foundation in writing within 30 days of its establishment.] IOLTA accounts shall be operated in accordance with this rule and with operating regulations and procedures as may be established by the Oregon State Bar and with the approval of the Oregon Supreme Court.
(b) All client funds shall be deposited in the lawyer's or law firm's IOLTA account unless a particular client's funds can earn net interest. All interest earned by funds held in the IOLTA account shall be paid to the Oregon Law Foundation as provided in this rule.
(c) Clients funds that can earn net interest shall be deposited in an interest bearing trust account for the client's benefit and the net interest earned by funds in such an account shall be held in trust as property of the client in the same manner as is provided in paragraphs (a) through (d) of Rule 1.15-1 for the principal funds of the client. The interest bearing account shall be either:
(1) a separate account for each particular client or client matter; or
(2) a pooled lawyer trust account with subaccounting which will provide for computation of interest earned by each client's funds and the payment thereof, net of any bank service charges, to each client.
(d) In determining whether client funds can or cannot earn net interest, the lawyer or law firm shall consider the following factors:
(1) the amount of the funds to be deposited;
(2) the expected duration of the deposit, including the likelihood of delay in the matter for which the funds are held;
(3) the rates of interest at financial institutions where the funds are to be deposited;
(4) the cost of establishing and administering a separate interest bearing lawyer trust account for the client's benefit, including service charges imposed by financial institutions, the cost of the lawyer or law firm's services, and the cost of preparing any tax-related documents to report or account for income accruing to the client's benefit;
(5) the capability of financial institutions, the lawyer or the law firm to calculate and pay income to individual clients; and
(6) any other circumstances that affect the ability of the client's funds to earn a net return for the client.
(e) The lawyer or law firm shall review the IOLTA account at reasonable intervals to determine whether circumstances have changed that require further action with respect to the funds of a particular client.
(f) If a lawyer or law firm determines that a particular client's funds in an IOLTA account either did or can earn net interest, the lawyer shall transfer the funds into an account specified in paragraph (c) of this rule and request a refund for any interest earned by the client's funds that may have been remitted to the Oregon Law Foundation.
(1) The request shall be made in writing to the Oregon Law Foundation within a reasonable period of time after the interest was remitted to the Foundation and shall be accompanied by written verification from the financial institution of the interest amount.
(2) The Oregon Law Foundation will not refund more than the amount of interest it received from the client's funds in question. The refund shall be remitted to the financial institution for transmittal to the lawyer or law firm, after appropriate accounting and reporting.
(g) No earnings from a lawyer trust account shall be made available to a lawyer or the lawyer's firm.
(h) A lawyer or law firm may maintain a lawyer trust account only at a financial institution that:
(1) is authorized by state or federal banking laws to transact banking business in the state where the account is maintained;
(2) is insured by the Federal Deposit Insurance Corporation or an analogous federal government agency;
(3) has entered into an agreement with the Oregon Law Foundation;
(i) to remit to the Oregon Law Foundation, at least quarterly, interest earned [on the average daily balance in the lawyer's or law firm's] by the IOLTA account, computed in accordance with the institution's standard accounting practices, less reasonable service charges, if any; and
(ii) to deliver to the Oregon Law Foundation a report with each remittance showing the name of the lawyer or law firm for whom the remittance is sent, the number of the IOLTA account as assigned by the financial institution, the average daily collected account balance or the balance on which the interest remitted was otherwise computed for each month for which the remittance is made, the rate of interest applied, the period for which the remittance is made, and the amount and description of any service charges deducted during the remittance period; and
(4) has entered into an overdraft notification agreement with the Oregon State Bar requiring the financial institution to report to the Oregon State Bar Disciplinary Counsel when any properly payable instrument is presented against such account containing insufficient funds, whether or not the instrument is honored.
(i) Overdraft notification agreements with financial institutions shall require that the following information be provided in writing to Disciplinary Counsel with ten banking days of the date the item was returned unpaid:
(1) the identity of the financial institution;
(2) the identity of the lawyer or law firm;
(3) the account number; and
(4) either (i) the amount of the overdraft and the date it was created; or (ii) the amount of the returned instrument and the date it was returned.
(j) Agreements between financial institutions and the Oregon State Bar or the Oregon Law Foundation shall apply to all branches of the financial institution [and]. Such agreements shall not be canceled except upon a thirty-day notice in writing to OSB Disciplinary Counsel in the case of a trust account overdraft notification agreement or to the Oregon Law Foundation in the case of an IOLTA agreement.
(k) Nothing in this rule shall preclude financial institutions which participate in any trust account overdraft notification program from charging lawyers or law firms for the reasonable costs incurred by the financial institutions in participating in such program.
(l) Every lawyer who receives notification from a financial institution that any instrument presented against his or her lawyer trust account was presented against insufficient funds, whether or not the instrument was honored, shall promptly notify Disciplinary Counsel in writing of the same information required in paragraph (i). The lawyer shall include a full explanation of the cause of the overdraft.
(m) Every lawyer shall certify annually on a form and by a due date prescribed by the Oregon State Bar that the lawyer is in compliance with Rule 1.15-1 and this rule. Between annual certifications, a lawyer establishing an IOLTA account shall so advise the Oregon Law Foundation in writing within 30 days of establishing the account, on a form approved by the Oregon Law Foundation.
(n) For the purposes of paragraph (h)(3), "service charges" are limited to the institution's following customary check and deposit processing charges: monthly maintenance fees, per item check charges, items deposited charges and per deposit charges. Any other fees or transaction costs are not "service charges" for purposes of paragraph (h)(3) and must be paid by the lawyer or the law firm.
DATED this 30th day of November 2005.
Wallace P. Carson, Jr.