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July 01, 2016

ABA urges FDIC to modify final deposit insurance rule to protect confidentiality of client trust accounts

ABA President Paulette Brown urged the Federal Deposit Insurance Corporation (FDIC) last month to revise its proposed deposit insurance recordkeeping rule to state that confidential information regarding law firms’ client trust accounts held at large banks need not be disclosed to the financial institution or the FDIC unless and until the institution fails.

The proposed rule for Recordkeeping for Timely Deposit Insurance Determinations would require large depository institutions with two million or more depository accounts – known as “covered institutions” – to maintain complete and accurate data on each depositor’s ownership interest by right and capacity for all of the institutions’ deposit accounts and to develop the capability to quickly calculate the insured and uninsured amounts for each deposit owner.    The proposal is intended to ensure that the FDIC can provide the depositors with prompt access to their insured funds in the event of a bank failure.

New disclosure requirements in the proposed rule would expand existing recordkeeping duties for covered institutions to all account holders, including law firms and other agents or custodians holding pass-through deposit accounts containing client funds. Under current FDIC regulations, law firms and other financial intermediaries that establish pass-through accounts on behalf of clients or others are permitted to maintain information off-site about the beneficial owners of those accounts in the intermediaries’ records and need not disclose that confidential client information to the bank or the FDIC unless and until the bank fails.

In a June 24 comment letter to the FDIC, Brown said the ABA appreciates the FDIC’s efforts to improve financial institution recordkeeping, but she expressed concerns that the proposed disclosure requirements “would impose unreasonable and excessive burdens on many law firms with client trust fund accounts and undermine both the confidential lawyer-client relationship and traditional state court regulation of lawyers.” She explained that the new requirements are unnecessary in light of lawyers’ existing ethical duties to maintain complete and accurate records regarding client trust accounts and law firms’ present ability to quickly provide the necessary information to financial institutions and the FDIC in the unlikely event of a large bank failure.

Brown also pointed out that limited exceptions in the proposed rule are inadequate because they are directed to – and must be requested by – the covered institutions rather than the law firms whose confidential client information is being sought. The proposed rule also grants the FDIC “sole discretion” to approve or disapprove each request for an exception, and even those that are granted may be conditional or time-limited. 

In addition, Brown emphasized that the disclosure requirements would be inconsistent with express language in the new Customer Due Diligence Rule issued in May by the Treasury Department’s Financial Crimes Enforcement Network (FinCEN) stating that law firms need not disclose the identities or beneficial ownership information of clients for whom attorney escrow or client trust accounts are established. FinCEN added this clarifying language protecting the confidentiality of law firm clients to its final rule in response to previous concerns raised by the ABA.

“Now that FinCEN has recognized the importance of such factors as lawyers’ professional obligations to maintain client confidentiality under state law, the significant operational challenges faced by law firms in collecting and then continuously updating and reporting client beneficial ownership information, and the extensive recordkeeping requirements that states already impose on lawyers, the FDIC should acknowledge these same special factors and adopt a similar exemption for law firm client trust accounts in its final rule,” Brown said.

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