Model Rule 1.15

Reporter's Explanation of Changes


1. Paragraph (b): Deposits to minimize bank charges

The Commission heard testimony that in some jurisdictions lawyers are unable to avoid bank charges unless they are permitted to deposit money in a client trust account to cover such charges. The addition of this new paragraph is designed to address that problem.

2. Paragraph (c): Advance payment of fees and expenses

This new paragraph provides needed practical guidance to lawyers on how to handle advance deposits of fees and expenses. The Commission is responding to reports that the single largest class of claims made to client protection funds is for the taking of unearned fees.

3. Paragraph (e): Expand to cover all instances of disputed funds

Current Rule 1.15(c) is presently written to cover disputes between the lawyer and "another person," usually the client. The change proposed recognizes that at least three kinds of disputes are in fact possible: client-lawyer, client-creditor and lawyer-client's creditor. The proposed change thus uses more general language, tightens the first two sentences into one and reiterates the lawyer's duty to pay over undisputed sums. The final additional sentence clarifies the lawyer's duty to promptly distribute all portions of the property that are not subject to dispute.


[1] Consistent with the Commission's action with respect to Rule 1.18, a phrase has been added to make clear that prospective clients are included among the third parties to whom the lawyer owes a duty to protect property pursuant to this Rule.

While the black letter of this Rule is written in mandatory terms, the Comments are often permissive. Sometimes that may be appropriate, as where a safe deposit box is suggested unless something else is warranted by the circumstances. When the issue is close, permissive language has been retained. However, Rule 1.15(a) clearly requires that client property, including money, be kept separate from the lawyer's own, and the Comment has been changed to make that clear. A sentence has been added to provide guidance to lawyers regarding the proper maintenance of trust accounts.

[2] This new Comment addresses new paragraph (b).

[3] This Comment deals with handling client funds that may be set aside for payment of fees. The current language refers only to funds received from third parties, whereas the usual payer will be the client. Further, the lawyer should not have to show that the client is in fact likely to leave town if, pursuant to agreement, the lawyer is entitled to have the security of funds paid over before the fee is actually earned.

In addition, as in Comment [1], the clear Rule 1.15(a) and (e) requirements that disputed client funds be kept in a separate account is made mandatory rather than permissive.

[4] This Comment deals with a practical problem in which a client's creditor tries to get at funds in the hands of the lawyer. There is no doubt that, as a matter of substantive law, in some cases the lawyer would be required to make the creditor whole if the lawyer remitted property to the client to which the creditor was found entitled. In those, but only those, cases, paragraph (e) mandates a lawyer's refusal to remit the funds to the client until the dispute is resolved, while this Comment reinforces and tries to explain this sometimes controversial point. The Comment further explains that the lawyer's duty to protect client creditors only exists when the creditor has a claim against specific funds being held by the lawyer and that the lawyer's duty to protect the third party exists only when there is a nonfrivolous claim under applicable law. When there are substantial grounds for dispute as to the person entitled to the funds, the lawyer may file an action to have a court resolve the dispute.

[5] These changes clarify that when a lawyer holds funds in a capacity other than as a lawyer representing a client, this Rule does not apply.

[6] The change to "lawyers' fund for client protection" reflects the current nomenclature for these funds. The new language in the second sentence indicates a lawyer has an obligation to contribute to these funds in jurisdictions where they are mandatory.

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