Model Rules for Trust Account Overdraft Notification - Rule 3

Rule 3 OVERDRAFT REPORTS

The overdraft notification agreement shall provide that all reports made by the financial institution shall be in the following format:

(1) In the case of a dishonored instrument, the report shall be identical to the overdraft notice customarily forwarded to the depositor, and should include a copy of the dishonored instrument, if such a copy is normally provided to depositors; and
(2) In the case of instruments that are presented against insufficient funds but which instruments are honored, the report shall identify the financial institution, the lawyer or law firm, the account number, the date of presentation for payment and the date paid, as well as the amount of overdraft created thereby.

Such reports shall be made simultaneously with, and within the time provided by law for, notice of dishonor, if any. If an instrument presented against insufficient funds is honored, then the report shall be made within [5] banking days of the date of presentation for payment against insufficient funds.

Comment
The rule provides the proper format for overdraft reports, distinguishing between dishonored instruments and instruments that are presented against insufficient funds but honored. Where instruments are dishonored, a copy of the notice of dishonor is sufficient. Where instruments are presented against insufficient funds but paid, the rule specifies the information that the institution should provide.

Ordinarily, a financial institution gives notice of an overdraft to a depositor before midnight of the next banking day following receipt of the item or notice. See Uniform Commercial Code (U.L.A.) º 3-503(c) (Revised Article 3, 1990) or Uniform Commercial Code (U.L.A.) º 3-508(2) (Prior Article 3, pre-1990). This is the same time period in which overdraft notification is to be given to the state lawyer disciplinary agency. Where an instrument presented against insufficient funds is honored, the rule recommends that the financial institution send overdraft notification to the agency within 5 days of the date of presentation.

The rule contemplates that the lawyer disciplinary agency, upon receipt of the overdraft notification, will contact the lawyer or law firm by telephone and request an explanation for the overdraft. A letter, requesting a documented explanation, may also be sent. If the overdraft is an accounting error, the lawyer or law firm will submit a written, documented explanation to substantiate the error.

Where the lawyer or law firm cannot supply an adequate or complete explanation for the overdraft, other action may be taken, including an audit or a demand for production of the lawyer's books and records.


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