WSR 09-09-013

RULES OF COURT

STATE SUPREME COURT


[ April 2, 2009 ]

IN THE MATTER OF THE ADOPTION OF THE AMENDMENTS TO RPC 1.15A-SAFEGUARDING PROPERTY, NEW ELC 15.7-TRUST ACCOUNTS AND THE LEGAL FOUNDATION OF WASHINGTON, ELC 15.4-TRUST ACCOUNT OVERDRAFT NOTIFICATION, ELC TITLE 15, IOLTA, AUDITS, AND TRUST ACCOUNT OVERDRAFT NOTIFICATION (CAPTION), ELPOC 15.4-TRUST ACCOUNT OVERDRAFT NOTIFICATION )

) ) ) ) ) ) ) ) ) ) ) )

ORDER

NO. 25700-A-919


The Washington State Bar Association and the Legal Foundation of Washington having recommended the adoption of the proposed amendments to RPC 1.15A-Safeguarding Property, New ELC 15.7-Trust Accounts and the Legal Foundation of Washington, ELC 15.4-Trust Account Overdraft Notification, ELC Title 15, IOLTA, Audits, and Trust Account Overdraft Notification (Caption), ELPOC 15.4-Trust Account Overdraft Notification, and the Court having approved the proposed amendments for publication;

Now, therefore, it is hereby

ORDERED:

(a) That pursuant to the provisions of GR 9(g), the proposed amendment as attached hereto are to be published for comment in the Washington Reports, Washington Register, and on the Washington State Bar Association and Office of the Administrator for the Courts' websites expeditiously.

(b) The purpose statement as required by GR 9(e), is published solely for the information of the Bench, Bar and other interested parties.

(c) Comments are to be submitted to the Clerk of the Supreme Court by either U.S. Mail or Internet E-Mail by no later than 60 days from the published date. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, Washington 98504-0929, or Camilla.Faulk@courts.wa.gov. Comments submitted by e-mail message must be limited to 1500 words.

DATED at Olympia, Washington this 2nd day of April, 2009.
For the Court
Gerry L. Alexander
CHIEF JUSTICE

Reviser's note: The typographical errors in the above material occurred in the copy filed by the State Supreme Court and appear in the Register pursuant to the requirements of RCW 34.08.040.


GR 9 COVER SHEET

Suggested Amendments to

the RULES OF PROFESSIONAL CONDUCT (RPC) RPC 1.15A and the RULES FOR ENFORCEMENT OF LAWYER CONDUCT (ELC) ELC 15.4, ELC 15.7 (new rule), and Title 15 caption, and the RULES FOR ENFORCEMENT OF LIMITED PRACTICE OFFICER CONDUCT (ELPOC) ELPOC 15.4



Purpose of the Suggested Amendment:

The Legal Foundation of Washington suggests an amendment to RPC 1.15A, together with adoption of a new rule, ELC 15.7, and related amendments to ELC 15.4 and ELPOC 15.4 and the caption of ELC Title 15. The purpose of this proposal is to require attorneys to establish and maintain IOLTA accounts only with financial institutions that pay IOLTA accounts the highest rates generally paid to other, similarly-situated customers at that financial institution. This proposal is consistent with a national trend requiring equitable treatment of IOLTA accounts with other similar depository instruments. As of the time of the filing of this Petition, twenty states and Washington, DC have amended their IOLTA rules to contain a comparability requirement similar to the rule amendment suggested here.


Interests of the Proponent

The Legal Foundation of Washington (LFW) is a not-for-profit 501 (c)(3) corporation established by the Supreme Court in 1984 to collect and distribute interest on IOLTA accounts pursuant to DR 9-102 (recodified as RPC 1.15A). In re Adoption of an IOLTA Program, 102 Wn.2d 1101, 1115 (1984). Since 1985, LFW has received interest income from attorneys' pooled trust accounts. These funds have been used to support the delivery of civil legal aid services to low income people in Washington State.

In addition to its authority and responsibility to collect, administer and disburse IOLTA funds, LFW is also authorized to work to expand funding for civil legal aid services under its Supreme Court-approved charter. ARTICLES OF INCOPORATION OF THE LEGAL FOUNDATION OF WASHINGTON, Article IV. In recent years, LFW has actively exercised this authority by managing the Washington State Equal Justice Coalition (EJC), which educates public and governmental leaders about efforts to expand funding for civil legal aid. LFW also serves as the administrative host for the Legal Aid for Washington (LAW) Fund and the Campaign for Equal Justice, as well as the Endowment for Equal Justice, which are statewide efforts dedicated to increasing private, charitable support for civil legal aid. In 2005, LFW and the Washington Supreme Court's Access to Justice Board (ATJ Board) requested the Supreme Court amend Court Rule 23 to direct 25% of residuals from class action law suits in state court to LFW. The Court approved this rule amendment and this has generated some incremental additional funding for civil legal aid.

The grants made by LFW are the primary source of discretionary funding to the more than 30 legal aid programs that make up Washington State's Alliance for Equal Justice. In making decisions about how to allocate the resources available to it, LFW is guided by the ATJ Board's Hallmarks of an Effective Legal Services Delivery System (2004)1 and State Plan for the Delivery of Civil legal Services to Low Income People in Washington State (revised May 2006)2. Over the past five years, LFW's grant making decisions have also been guided by the Civil Legal Needs Study published by the Supreme Court's Task Force on Civil Equal Justice Funding (October 2003)3.

1http://www.wsba.org/atj/documents/hallmark.htm

2http://www.wsba.org/lawyers/groups/probono/2006stateplan.pdf

3http://www.courts.wa.gov/newsinfo/content/taskforce/CivilLegalNeeds.pdf

The degree to which low income people who experience civil legal problems are forced to face the justice system without any help is staggering. The Civil Legal Needs Study documents that:
o Eighty-seven percent (87%) of low-income households in our state experience a civil legal problem each year. Almost 9 out of 10 face their legal problems without any assistance.
o Low-income women and children experience a disproportionate number of unmet civil legal needs. Domestic violence victims experience the greatest number of civil legal problems.
o The most common civil legal needs are in areas involving basic human needs such as housing, personal safety and security and public safety. Many legal needs experienced by persons with disabilities and members of minority groups also involve concerns about differential treatment and discrimination.
o Legal assistance is the key to securing effective outcomes. Nearly two-thirds of those who secure legal assistance feel that they obtain a fair resolution to their legal problems, while only one-quarter of those who do not secure legal assistance are satisfied with the outcome of their problem.
o The lack of adequate legal assistance for those who are poor or vulnerable erodes public confidence in the fairness of the state's civil justice system. Nearly three-quarters of those who do not secure legal assistance have negative attitudes toward the civil justice system.

The Need and Rationale for a Rule Requiring Equitable Treatment of IOLTA Deposits

A. There Are Current Economic Pressures on Civil Legal Aid Funding


Washington State's civil legal aid system faces an immediate threat of significant proportions. Funding comes from three principal sources: The Federal Legal Services Corporation, the State of Washington through its Office of Civil Legal Aid, and the Legal Foundation of Washington.

Federal funding from the Legal Services Corporation has been flat for five years and is unlikely to see appreciable increases in the coming years. Despite significant gains at the state legislative level in recent years, current and prospective budget constraints present sobering obstacles to the Office of Civil Legal Aid's efforts to close the Justice Gap chronicled in the Civil Legal Needs Study and the Task Force on Civil Equal Justice Funding's Final Report.

IOLTA income is inherently sensitive to two principal factors - (a) the level of overall business activity which drives the number of legal transactions and correspondingly the overall level of money held in IOLTA accounts; and (b) interest rates. A significant decline in Washington State-based business activity (including, but not limited to, the level of real estate activity) has resulted in substantial reductions in average daily balances of IOLTA accounts. Similarly, interest rates have plunged in the past year, which has resulted in decreased IOLTA revenue available for civil legal aid.

B. There Is Unfair Treatment of IOLTA Accounts

Even in better times, IOLTA revenues are lagging behind where they should be. The problem is that approved depository institutions historically have not paid market rates on IOLTA accounts. The rates paid on IOLTA accounts fall substantially below those of other similarly situated accounts.

Previously, only NOW accounts (interest-bearing checking accounts) were used for the deposit of IOLTA funds. In today's banking landscape, this creates disparities because even IOLTA accounts which, as pooled accounts, regularly carry very large balances receive only basic checking (NOW) account interest rates from virtually every IOLTA depository. In Washington State, many banks routinely pay one tenth of one percent interest (.10%), while at the same time paying 75% of the target Federal Funds rate - more than ten times than what is paid on the IOLTA account - on other similarly sized accounts. Some banks have paid higher rates, but only out of their own goodwill. The suggested amendments will make it clear that banks must pay comparable rates on comparable balances to participate in IOLTA.

The current Washington IOLTA rule, RPC 1.15A, simply states:

"(i) Trust accounts must be interest-bearing and allow withdrawals or transfers without any delay other than notice periods that are required by law or regulation."

In the absence of any requirement to pay more than a minimal level on interest bearing accounts, it is not surprising that financial institutions do not automatically provide return on IOLTA accounts like they do on comparable accounts. Traditional efforts in Washington State have focused on voluntary measures to persuade banks to pay higher rates. However, even with some banks paying acceptable interest rates with respect to the targeted Federal Funds rate, most financial institutions have chosen to maintain IOLTA accounts at substantially lower rates. The money that IOLTA funds have failed to earn is an "opportunity cost" that directly results in fewer civil legal aid services to vulnerable and low income people in Washington State.

LFW requests that the Supreme Court require that attorneys establish and maintain IOLTA accounts in otherwise qualifying depository institutions that treat IOLTA accounts on an equal footing with other similarly situated accounts.


What Does Comparability Mean?

The proposed comparability rule would require lawyers to maintain IOLTA accounts at eligible financial institutions that treat pooled interest trust accounts on an equal footing with other similarly-sized demand accounts - i.e., comparability of treatment. The suggested amendment offers financial institutions that maintain IOLTA accounts five different instruments with which to structure IOLTA accounts and meet the terms of comparability. It also gives financial institutions the option of how to meet the comparable rate requirements: by establishing the IOLTA account as the comparable higher rate product; by instead paying that rate on the existing IOLTA account; or by paying a "benchmark" percentage named in the rule. The rule also authorizes LFW to determine which institutions are successfully meeting the requirements of comparability. Finally, the suggested rule sets forth significant safety standards to ensure that pooled client funds are adequately protected.

The proponent has not drafted a proposed rule amendment that includes comparability for IOLTA accounts of Limited Practice Officers (LPOs), who are given a limited license to practice law in real estate closings. Instead, the proponents intend to work with the Limited Practice Board and other interested entities or persons to determine whether and when it is appropriate to similarly amend the LPO rules.


Other States' Experiences with Comparability Rules

Twenty one jurisdictions have added comparability requirements to their IOLTA rule4. States that have adopted comparability amendments to their IOLTA rules generally experience revenue increases of between 50% and 100%.

4 The jurisdictions include that have adopted and implemented comparability rules are Florida, Connecticut, Michigan, Ohio, Illinois, Massachusetts, New York, California, New Jersey, Maryland, New Mexico, Utah, Missouri, Pennsylvania, Texas, Washington, DC, Hawaii, Alabama, Arizona, Minnesota, and Maine.

To date, not one financial institution has dropped participation in the IOLTA program due to comparability rules in any of the states that have implemented an IOLTA comparability rule. Indeed, IOLTA program administrators generally report that IOLTA comparability rules have not disrupted relationships between law firms and financial institutions. Virtually all banks have opted to pay the comparable rate on the existing IOLTA account rather than require that the higher rate product be established as the IOLTA account. That means that after banks work with the IOLTA program on implementing this, lawyers have not had to take any action to effect the new rates paid on qualified IOLTA balances. Even when banks pay comparable rates, IOLTA accounts remain profitable for the banks. Banks are only paying what they already pay to other depositors. While some banks offered initial resistance to the implementation of comparability rules, none have stopped offering IOLTA accounts and indeed, many banks have embraced the comparability rule concept with enthusiasm.


The Mechanics of Implementing Comparability - How the Rules Will Change

The key change recommended in order to implement comparability is the adoption of a new Rule for Enforcement of Lawyer Conduct (ELC) to become part of ELC Title 15 (Audits and Trust Account Overdraft Notification). If these changes are adopted, it is further suggested that Title 15 be re-named "IOLTA, Audits, and Trust Account Overdraft Notification."

New ELC 15.7, in paragraph (a), defines and describes the LFW and specifies its duty to maintain a list of authorized financial institutions and prepare and annual report for the Supreme Court. Most of these provisions at present are found in RPC 1.15A and are relocated to ELC 15.7. Paragraph (b), a definitions section, defines a number of financial concepts relevant the types of IOLTA accounts that may established. Paragraph (c) sets forth the requirements that a financial institution must adhere to in order for the LFW to list the financial institution as authorized for lawyers to use for IOLTA accounts. Paragraph (d) states fundamental requirements for all trust accounts (both IOLTA accounts and non-IOLTA trust accounts). Paragraph (e) establishes the requirements that IOLTA accounts must pay comparable rates of interest and remit that interest to the LFW. It also defines the types of account fees and service that may be charged on IOLTA accounts. In addition, paragraph (e) sets forth the forms of IOLTA accounts that may be used.

The suggested amendments to RPC 1.15A are primarily designed to shift provisions relating to the function of LFW, the nature of authorized financial institutions, the requirements for financial institutions to become authorized, the system for remittance of interest to LFW, and the like, to new ELC 15.7. Thus, the focus of RPC 1.15A (with respect to funds) will be on the lawyer's obligation to hold client funds in a trust account, to choose the proper type of trust account under the circumstances, and to choose a financial institution that is on the LFW's "authorized" list. The text of amended RPC 1.15A references the provisions in ELC 15.7, making it clear that in selecting a financial institution a lawyer's obligation is to exercise ordinary prudence and to choose a financial institution on the authorized list. Newly drafted comments [18] - [20] further explain the relationship between the RPC 1.15A and ELC Title 15. These amendments will achieve a beneficial simplification of RPC 1.15A. Apart from the deletion of several provisions to be located in ELC 15.7 and the addition of references to ELC 15.4 and 15.7, the only significant change to the text of RPC 1.15A specifies that LFW determines which financial institutions may be selected by a lawyer when depositing funds into a trust account. One word ("transaction") has been added to paragraph (a) to correct a clerical error that has existed since the adoption of RPC 1.15A in 2006. Finally, amendments to ELC 15.4 and ELPOC 15.4 shift responsibility for receipt and administration of trust account notification agreements from the WSBA Disciplinary Board to the LFW. Currently, administrative functions related to the IOLTA program are being performed by both the LFW and the WSBA. In light of the other changes being recommended, it is appropriate, in order to avoid duplication of effort and potential confusion, for the LFW to maintain a master list of all authorized financial institutions. The financial institutions will still be required to file overdraft notification agreements (though they would now be filed with the LFW rather than the Disciplinary Board) and to report trust account overdrafts to the WSBA, but the LFW would manage all of the clerical and administrative aspects of this process. This change will improve the administration of the IOLTA program with no perceptible drawbacks.


Reviser's note: The spelling error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.


Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.


Reviser's note: The typographical errors in the above material occurred in the copy filed by the State Supreme Court and appear in the Register pursuant to the requirements of RCW 34.08.040.


RULES OF PROFESSIONAL CONDUCT (RPC)

RULE 1.15A. SAFEGUARDING PROPERTY


(a) This Rule applies to (1) property of clients or third persons in a lawyer's possession in connection with a representation and (2) escrow and other funds held by a lawyer incident to the closing of any real estate or personal property transaction. Additionally, for all transactions in which a lawyer has selected, prepared, or completed legal documents for use in the closing of any real estate or personal property transaction, the lawyer must ensure that all funds received or held by the Closing Firm incidental to the closing of the transaction, including advances for costs and expenses, are held and maintained as set forth in this rule or LPORPC 1.12A. The lawyer's duty to ensure that all funds received or held by the Closing Firm incidental to the closing of the transaction are held and maintained as set forth in this rule or LPORPC 1.12A shall not apply to a lawyer when that lawyer's participation in the matter is incidental to the closing and (i) the lawyer or lawyer's law firm has a preexisting client-lawyer relationship with a buyer or seller in the transaction, and (ii) neither the lawyer nor the lawyer's law firm has an existing client-lawyer relationship with the Closing Firm or an LPO participating in the closing.

(b) A lawyer must not use, convert, borrow or pledge client or third person property for the lawyer's own use.

(c) A lawyer must hold property of clients and third persons separate from the lawyer's own property.

(1) A lawyer must deposit and hold in a trust account funds subject to this Rule pursuant to paragraph (h) of this Rule.

(2) Except as provided in Rule 1.5(f), and subject to the requirements of paragraph (h) of this Rule, a lawyer shall deposit into a 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.

(3) A lawyer must identify, label and appropriately safeguard any property of clients or third persons other than funds. The lawyer must keep records of such property that identify the property, the client or third person, the date of receipt and the location of safekeeping. The lawyer must preserve the records for seven years after return of the property.

(d) A lawyer must promptly notify a client or third person of receipt of the client or third person's property.

(e) A lawyer must promptly provide a written accounting to a client or third person after distribution of property or upon request. A lawyer must provide at least annually a written accounting to a client or third person for whom the lawyer is holding funds.

(f) Except as stated in this Rule, a lawyer must promptly pay or deliver to the client or third person the property which the client or third person is entitled to receive.

(g) If a lawyer possesses property in which two or more persons (one of which may be the lawyer) claim interests, the lawyer must maintain the property in trust until the dispute is resolved. The lawyer must promptly distribute all undisputed portions of the property. The lawyer must take reasonable action to resolve the dispute, including, when appropriate, interpleading the disputed funds.

(h) A lawyer must comply with the following for all trust accounts:

(1) No funds belonging to the lawyer may be deposited or retained in a trust account except as follows:

(i) funds to pay bank charges, but only in an amount reasonably sufficient for that purpose;

(ii) funds belonging in part to a client or third person and in part presently or potentially to the lawyer must be deposited and retained in a trust account, but any portion belonging to the lawyer must be withdrawn at the earliest reasonable time; or

(iii) funds necessary to restore appropriate balances.

(2) A lawyer must keep complete records as required by Rule 1.15B.

(3) A lawyer may withdraw funds when necessary to pay client costs. The lawyer may withdraw earned fees only after giving reasonable notice to the client of the intent to do so, through a billing statement or other document.

(4) Receipts must be deposited intact.

(5) All withdrawals must be made only to a named payee and not to cash. Withdrawals must be made by check or by bank transfer.

(6) Trust account records must be reconciled as often as bank statements are generated or at least quarterly. The lawyer must reconcile the check register balance to the bank statement balance and reconcile the check register balance to the combined total of all client ledger records required by Rule 1.15B (a)(2).

(7) A lawyer must not disburse funds from a trust account until deposits have cleared the banking process and been collected, unless the lawyer and the bank have a written agreement by which the lawyer personally guarantees all disbursements from the account without recourse to the trust account.

(8) Disbursements on behalf of a client or third person may not exceed the funds of that person on deposit. The funds of a client or third person must not be used on behalf of anyone else.

(9) Only a lawyer admitted to practice law may be an authorized signatory on the account.

(i) Trust accounts must be interest-bearing and allow withdrawals or transfers without any delay other than notice periods that are required by law or regulation and meet the requirements of ELC 15.7(d) and ELC 15.7(e). In the exercise of ordinary prudence, a lawyer may select any financial institution authorized by the Legal Foundation of Washington (Legal Foundation) under ELC 15.7(c) bank, savings bank, credit union or savings and loan association that is insured by the Federal Deposit Insurance Corporation or National Credit Union Administration, is authorized by law to do business in Washington and has filed the agreement required by ELC 15.4. Trust account funds must not be placed in mutual funds, stocks, bonds, or similar investments. In selecting the type of trust account for the purpose of depositing and holding funds subject to this Rule, a lawyer shall apply the following criteria:

(1) When client or third-person funds will not produce a positive net return to the client or third person because the funds are nominal in amount or expected to be held for a short period of time the funds must be placed in a pooled interest-bearing trust account known as an Interest on Lawyer's Trust Account or IOLTA. The interest accruing on the IOLTA account, net of reasonable check and deposit processing charges which may only include items deposited charge, monthly maintenance fee, per item check charge, and per deposit charge, must be paid to the Legal Foundation of Washington. Any other fees and transaction costs must be paid by the lawyer. The interest earned on IOLTA accounts shall be paid to, and the IOLTA program shall be administered by, the Legal Foundation of Washington in accordance with ELC 15.4 and ELC 15.7(e).

(2) Client or third-person funds that will produce a positive net return to the client or third person must be placed in one of the following two types of non-IOLTA trust accounts, one of the following unless the client or third person requests that the funds be deposited in an IOLTA account:

(i) a separate interest-bearing trust account for the particular client or third person with earned interest paid to the client or third person; or

(ii) a pooled interest-bearing trust account with sub-accounting that allows for computation of interest earned by each client or third person's funds with the interest paid to the appropriate client or third person.

(3) In determining whether to use the account specified in paragraph (i)(1) or an account specified in paragraph (i)(2), a lawyer must consider only whether the funds will produce a positive net return to the client or third person, as determined by the following factors:

(i) the amount of interest the funds would earn based on the current rate of interest and the expected period of deposit;

(ii) the cost of establishing and administering the account, including the cost of the lawyer's services and the cost of preparing any tax reports required for interest accruing to a client or third person's benefit; and

(iii) the capability of financial institutions to calculate and pay interest to individual clients or third persons if the account in paragraph (i)(2)(ii) is used.

(4) As to IOLTA accounts created under paragraph (i)(1), lawyers or law firms must direct the depository institution:

(i) to remit interest or dividends, net of charges authorized by paragraph (i)(1), on the average monthly balance in the account, or as otherwise computed in accordance with an institution's standard accounting practice, monthly, to the Legal Foundation of Washington;

(ii) to transmit with each remittance to the Foundation a statement, on a form authorized by the Washington State Bar Association, showing details about the account, including but not limited to the name of the lawyer or law firm for whom the remittance is sent, the rate of interest applied, and the amount of service charges deducted, if any, and the balance used to compute the interest, with a copy of such statement to be transmitted to the depositing lawyer or law firm; and

(iii) to bill fees and transaction costs not authorized by paragraph (i)(1) to the lawyer or law firm.

(5) The provisions of paragraph (i) do not relieve a lawyer or law firm from any obligation imposed by these Rules or the Rules for Enforcement of Lawyer Conduct.

(j) The Legal Foundation of Washington must prepare an annual report to the Supreme Court of Washington that summarizes the Foundation's income, grants and operating expenses, implementation of its corporate purposes, and any problems arising in the administration of the program established by paragraph (i) of this Rule.


Washington Comments


[1] A lawyer must also comply with the recordkeeping rule for trust accounts, Rule 1.15B.

[2] Client funds include, but are not limited to, the following: legal fees and costs that have been paid in advance other than retainers and flat fees complying with the requirements of Rule 1.5(f)), funds received on behalf of a client, funds to be paid by a client to a third party through the lawyer, other funds subject to attorney and other liens, and payments received in excess of amounts billed for fees.

[3] This Rule applies to property held in any fiduciary capacity in connection with a representation, whether as trustee, agent, escrow agent, guardian, personal representative, executor, or otherwise.

[4] The inclusion of ethical obligations to third persons in the handling of trust funds and property is not intended to expand or otherwise affect existing law regarding a Washington lawyer's liability to third parties other than clients. See, e.g., Trask v. Butler, 123 Wn.2d 835, 872 P.2d 1080 (1994); Hetzel v. Parks, 93 Wn. App. 929, 971 P.2d 115 (1999).

[5] Property covered by this Rule includes original documents affecting legal rights such as wills or deeds.

[6] A lawyer has a duty to take reasonable steps to locate a client or third person for whom the lawyer is holding funds or property. If after taking reasonable steps, the lawyer is still unable to locate the client or third person, the lawyer should treat the funds as unclaimed property under the Uniform Unclaimed Property Act, RCW 63.29.

[7] A lawyer may not use as a trust account an account in which funds are periodically transferred by the bank financial institution between a trust account and an uninsured account or other account that would not qualify as a trust account under this Rule or ELC 15.7.

[8] If a lawyer accepts payment of an advanced fee deposit by credit card, the payment must be deposited directly into the trust account. It cannot be deposited into a general account and then transferred to the trust account. Similarly, credit card payments of earned fees, of retainers meeting the requirements of Rule 1.5 (f)(1), and of flat fees meetings the requirements of Rule 1.5 (f)(2) cannot be deposited into the trust account and then transferred to another account.

[9] Under paragraph (g), the extent of the efforts that a lawyer is obligated to take to resolve a dispute depend on the amount in dispute, the availability of methods for alternative dispute resolution, and the likelihood of informal resolution.

[10] The requirement in paragraph (h)(4) that receipts must be deposited intact means that a lawyer cannot deposit one check or negotiable instrument into two or more accounts at the same time, commonly known as a split deposit.

[11] Paragraph (h)(7) permits Washington lawyers to enter into written agreements with the trust account financial institution to provide for disbursement of trust deposits prior to formal notice of dishonor or collection. In essence the trust account bank is agreeing to or has guaranteed a loan to the lawyer and the client for the amount of the trust deposit pending collection of that deposit from the institution upon which the instrument was written. A Washington lawyer may only enter into such an arrangement if 1) there is a formal written agreement between the attorney and the trust account institution, and 2) the trust account financial institution provides the lawyer with written assurance that in the event of dishonor of the deposited instrument or other difficulty in collecting the deposited funds, the financial institution will not have recourse to the trust account to obtain the funds to reimburse the financial institution. A lawyer must never use one client's money to pay for withdrawals from the trust account on behalf of another client who is paid subject to the lawyer's guarantee. The trust account financial institution must agree that the institution will not seek to fund the guaranteed withdrawal from the trust account, but will instead look to the lawyer for payment of uncollectible funds. Any such agreement must ensure that the trust account funds or deposits of any other client's or third person's money into the trust account would not be affected by the guarantee.

[12] The Legal Foundation of Washington was established by Order of the Supreme Court of Washington.

[13] A lawyer may, but is not required to, notify the client of the intended use of funds paid to the Foundation.

[14] If the client or third person requests that funds that would be deposited in a separate interest-bearing account a non-IOLTA trust account under paragraph (i)(2) instead be held in the IOLTA account, the lawyer should document this request in the lawyer's trust account records and preferably should confirm the request in writing to the client or third person.

[15] A lawyer may not receive from financial institutions earnings credits or any other benefit from the financial institution based on the balance maintained in a trust account.

[16] The term "Closing Firm" as used in this rule has the same definition as in ELPOC 1.3(g).

[17] The lawyer may satisfy the requirement of paragraph (a), that the lawyer must ensure that all funds received or held by the Closing Firm incidental to the closing of the transaction including advances for costs and expenses, are held and maintained as set forth in this rule or LPORPC 1.12A, by obtaining a certification or other reasonable assurance from the Closing Firm that the funds are being held in accordance with RPC 1.15A and/or LPORPC 1.12A. The lawyer is not required to personally inspect the books and records of the Closing Firm.

The last sentence of Paragraph (a) is intended to relieve a lawyer from the duties of paragraph (a) only if the lawyer or the lawyer's law firm has a previous client-lawyer relationship with one of the parties to the transaction and that party is a buyer or seller. Lawyers may be called on by clients to review deeds prepared during the escrow process, or may be asked to prepare special deeds such as personal representative's deeds for use in the closing. A lawyer may also be asked by a client to review documents such as settlement statements or tax affidavits that have been prepared for the closing. Such activities are limited in scope and are only incidental to the closing. The exception stated in the last sentence of paragraph (a) does not apply if the lawyer or the lawyer's law firm has an existing client-lawyer relationship with the Closing Firm or with a limited practice officer who is participating in the closing.

[18] When selecting a financial institution for purposes of depositing and holding funds in a trust account, a lawyer is obligated to exercise ordinary prudence under paragraph (i). All trust accounts must be insured by the Federal Deposit Insurance Corporation or the National Credit Union Administration up to the limit established by law for those types of accounts or be backed by United States Government Securities. Trust account funds must not be placed in stocks, bonds, mutual funds that invest in stock or bonds, or similar uninsured investments. See ELC 15.7(d).

[19] Only those financial institutions authorized by the Legal Foundation of Washington (Legal Foundation) are eligible to offer trust accounts to Washington lawyers. To become authorized, the financial institution must satisfy the Legal Foundation that it qualifies as an authorized financial institution under ELC 15.7(c) and must have on file with the Legal Foundation a current Overdraft Notification Agreement under ELC 15.4. A list of all authorized financial institutions is maintained and published by the Legal Foundation and is available to any person on request.

[20] Upon receipt of a notification of a trust account overdraft, a lawyer must comply with the duties set forth in ELC 15.4(d) (lawyer must promptly notify the Office of Disciplinary Counsel of the Washington State Bar Association and include a full explanation of the cause of the overdraft).


Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.

Reviser's note: The typographical errors in the above material occurred in the copy filed by the State Supreme Court and appear in the Register pursuant to the requirements of RCW 34.08.040.


RULES FOR ENFORCEMENT OF LAWYER CONDUCT (ELC)

[New Rule]

RULE 15.7. TRUST ACCOUNTS AND THE LEGAL FOUNDATION OF WASHINGTON


(a) Legal Foundation of Washington. The Legal Foundation of Washington (Legal Foundation) was established by Order of the Supreme Court of Washington to administer distribution of Interest on Lawyer's Trust Account (IOLTA) funds to civil legal aid programs.

(1) Administrative Responsibilities. The Legal Foundation is responsible for assessing the products and services offered by financial institutions operating in the state of Washington and determining whether such institutions meet the requirements of this rule, ELC 15.4, and ELPOC 15.4. The Legal Foundation must maintain a list of financial institutions authorized to establish client trust accounts and publish the list on a website maintained by the Legal Foundation for public information. The Legal Foundation must provide a copy of the list to any person upon request.

(2) Annual Report. The Legal Foundation must prepare an annual report to the Supreme Court of Washington that summarizes the Foundation's income, grants and operating expenses, implementation of its corporate purposes, and any problems arising in the administration of the IOLTA program.

(b) Definitions. The following definitions apply to this rule:

(1) United States Government Securities. United States Government Securities are defined as direct obligations of the United States Government, or obligations issued or guaranteed as to principal and interest by the United States or any agency or instrumentality thereof, including United States Government-Sponsored Enterprises.

(2) Daily Financial Institution Repurchase Agreement. A daily financial institution repurchase agreement must be fully collateralized by United States Government Securities and may be established only with an authorized financial institution that is deemed to be "well capitalized" under applicable regulations of the Federal Deposit Insurance Corporation and the National Credit Union Association.

(3) Money Market Funds. A money market fund is an investment company registered under the Investment Company Act of 1940, as amended, that is regulated as a money market funder under Rules and Regulations adopted by the Securities and Exchange Commission pursuant to said Act, and at the time of the investment, has total assets of at least five hundred million dollars ($500,000,000). A money market fund must be comprised solely of United States Government Securities or investments fully collateralized by United States Government Securities.

(c) Authorized Financial Institutions. Any bank, savings bank, credit union, savings and loan association, or other financial institution that meets the following criteria is eligible to become an authorized financial institution under this rule:

(1) is insured by the Federal Deposit Insurance Corporation (FDIC) or the National Credit Union Administration;

(2) is authorized by law to do business in Washington;

(3) complies with all requirements set forth in section (d) of this rule and in ELC 15.4; and

(4) if offering IOLTA accounts, complies with all requirements set forth in section (e) of this rule.

The Legal Foundation determines whether a financial institution is an authorized financial institution under this section. Upon a determination of compliance with all requirements of this rule and ELC 15.4, the Legal Foundation must list a financial institution as an authorized financial institution under section (a)(1). At any time, the Legal Foundation may request that a listed financial institution establish or certify compliance with the requirements of this rule or ELC 15.4. The Legal Foundation may remove a financial institution from the list of authorized financial institutions upon a determination that the financial institution is not in compliance.

(d) Requirements of All Trust Accounts. All trust accounts established pursuant to RPC 1.15A(i) or LPORPC 1.12A(h) must be insured by the Federal Deposit Insurance Corporation or the National Credit Union Administration up to the limit established by law for those types of accounts or be backed by United States Government Securities. Trust account funds must not be placed in stocks, bonds, mutual funds that invest in stock or bonds, or similar uninsured investments.

(e) IOLTA Accounts. To qualify for Legal Foundation approval as an authorized financial institution offering IOLTA accounts, in addition to meeting all other requirements set forth in this Rule, a financial institution must comply with the requirements set forth in this section.

(1) Interest Comparability. For accounts established pursuant to RPC 1.15A, authorized financial institutions must pay the highest interest rate generally available from the institutions to its non-IOLTA account customers when IOLTA accounts meet or exceed the same minimum balance or other account eligibility qualifications, if any. In determining the highest interest rate generally available to its non-IOLTA customers, authorized financial institutions may consider factors, in addition to the IOLTA account balance, customarily considered by the institution when setting interest rates for its customers, provided that such factors do not discriminate between IOLTA accounts and accounts of non-IOLTA customers and that these factors do not include that the account is an IOLTA account. An authorized financial institution may satisfy these comparability requirements by selecting one of the following options:

(i) Establish the IOLTA account as the comparable interest-paying product; or

(ii) Pay the comparable interest rate on the IOLTA checking account in lieu of actually establishing the comparable interest-paying product; or

(iii) Pay a rate on IOLTA equal to 75% of the Federal Funds Targeted Rate as of the first business day of the month or IOLTA remitting period, or .75%, whichever is higher, and which rate is deemed to be already net of allowable reasonable service charges or fees.

(2) Remit Interest to Legal Foundation of Washington. Authorized financial institutions must remit the interest accruing on all IOLTA accounts, net of reasonable account fees, to the Legal Foundation monthly, on a report form prescribed by the Legal Foundation. At a minimum, the report must show details about the account, including but not limited to the name of the lawyer, law firm, LPO, or Closing Firm for whom the remittance is sent, the rate of interest applied, the amount of service charges deducted, if any, and the balance used to compute the interest. Interest must be calculated on the average monthly balance in the account, or as otherwise computed in accordance with applicable state and federal regulations and the institution's standard accounting practice for non-IOLTA customers. The financial institution must notify each lawyer, law firm, LPO, or Closing Firm of the amount of interest remitted to the Legal Foundation on a monthly basis on the account statement or other written report.

(3) Reasonable account fees. Reasonable account fees may only include per deposit charges, per check charges, a fee in lieu of minimum balances, sweep fees, FDIC insurance fees, and a reasonable IOLTA account administration fee. No service charges or fees other than the allowable, reasonable fees may be assessed against the interest or dividends on an IOLTA account. Any service charges or fees other than allowable reasonable fees must be the sole responsibility of, and may be charged to, the lawyer, law firm, LPO, or Closing Firm maintaining the IOLTA account. Fees or charges in excess of the interest or dividends earned on the account must not be deducted from interest or dividends earned on any other account or from the principal.

(4) Comparable Accounts. Subject to the requirements set forth in sections (d) and (e), an IOLTA account may be established as:

(i) A business checking account with an automated investment feature, such as a daily bank repurchase agreement or a money market fund; or

(ii) A checking account paying preferred interest rates, such as a money market or indexed rates; or

(iii) A government interest-bearing checking account such as an account used for municipal deposits; or

(iv) An interest-bearing checking account such as a negotiable order of withdrawal (NOW) account, business checking account with interest; or

(v) Any other suitable interest-bearing product offered by the authorized financial institution to its non-IOLTA customers.

(5) Nothing in this rule precludes an authorized financial institution from paying an interest rate higher than described above or electing to waive any service charges or fees on IOLTA accounts.


Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.


RULES FOR ENFORCEMENT OF LAWYER CONDUCT (ELC)

RULE 15.4. TRUST ACCOUNT OVERDRAFT NOTIFICATION



(a) Overdraft Notification Agreement Required. To be authorized as a depository for lawyer trust accounts referred to in RPC 1.15A(i) or LPO trust accounts referred to in LPO RPC 1.12A(i), a Every financial institution, bank, credit union, savings bank, or savings and loan association referred to in RPC 1.15A(i) and LPO RPC 1.12A(i) must will be approved as a depository for lawyer trust accounts and LPO trust accounts if it files with the Legal Foundation of Washington Disciplinary Board an agreement, in a form provided by the Washington State Bar Association Board, to report to the Washington State Bar Association Board if any properly payable instrument is presented against a lawyer, LPO or closing firm trust account containing insufficient funds, whether or not the instrument is honored. The agreement must apply to all branches of the financial institution and cannot be canceled except on 30 days' notice in writing to the Legal Foundation of Washington Board. The Legal Foundation of Washington must provide copies of signed agreements and notices of cancellation to the Washington State Bar Association Board annually publishes a list of approved financial institutions.

(b) Overdraft Reports.

(1) The overdraft notification agreement must provide that all reports made by the financial institution must contain the following information:

(A) the identity of the financial institution;

(B) the identity of the (1) the lawyer or law firm, or (2) the limited practice officer or closing firm;

(C) the account number; and

(D) either:

(i) the amount of overdraft and date created; or

(ii) the amount of the returned instrument(s) and the date returned.

(2) The financial institution must provide the information required by the notification agreement within five banking days of the date the item(s) was paid or returned unpaid.

(c) Costs. Nothing in these rules precludes a financial institution from charging a particular lawyer or law firm for the reasonable cost of producing the reports and records required by this rule, but those charges may not be a transaction cost charged against funds payable to the Legal Foundation of Washington under RPC 1.15A (i)(1) and ELC 15.7(e).

(d) Notification by Lawyer. Every lawyer who receives notification that any instrument presented against his or her trust account was presented against insufficient funds, whether or not the instrument was honored, must promptly notify the Office of Disciplinary Counsel of the Association of the information required by section (b). The lawyer must include a full explanation of the cause of the overdraft.


RULES FOR ENFORCEMENT OF LAWYER CONDUCT (ELC)

[Caption]



TITLE 15. IOLTA, AUDITS, AND TRUST ACCOUNT OVERDRAFT NOTIFICATION


Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.


RULES FOR ENFORCEMENT OF LIMITED PRACTICE

OFFICER CONDUCT (ELPOC)

RULE 15.4 TRUST ACCOUNT OVERDRAFT NOTIFICATION



(a) Overdraft Notification Agreement Required. To be authorized as a depository for LPO trust accounts, Every a bank, credit union, savings and loan association, or qualified public depository referred to in LPORPC 1.12A(i) will be approved as a depository for LPO trust accounts if it files must file with the Legal Foundation of Washington (Legal Foundation) Association's Disciplinary Board an agreement as provided for under ELC 15.4 (a) and (b). The Legal Foundation Association's Disciplinary Board annually publishes a list of approved maintains a list of financial institutions authorized to establish LPO trust accounts and publishes the list on a website maintained by the Legal Foundation for public information.

(b) - (c) [Unchanged.]

Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.

Washington State Code Reviser's Office