October 05, 2011

    Model Rules for Lawyers' Funds for Client Protection - Rule 11

    RULE 11 PROCEDURES AND RESPONSIBILITIES FOR CLAIMANTS

    1. The Board shall prepare and approve a form for claiming reimbursement.
    2. The form shall include at least the following information provided by the claimant under penalty of perjury:

      1. the name and address of claimant, home and business telephone, occupation and employer, social security number;

      2. the name, address and telephone number of the lawyer alleged to have dishonestly taken the claimant's money or property, and any family or business relationship of the claimant to the lawyer;

      3. the legal or other fiduciary services the lawyer was to perform for the claimant;

      4. the amount paid to the lawyer;

      5. a copy of any written agreement pertaining to the claim;

      6. copies of any checks, money orders, receipts, or other proofs of payment;

      7. the form of the claimant's loss (e.g. money, securities or other property);

      8. the amount of loss and the date when the loss occurred;

      9. the date when the claimant discovered the loss, and how the claimant discovered the loss;

      10. the lawyer's dishonest conduct and the names and addresses of any persons who have knowledge of the loss;

      11. the name of the person, if any, to whom the loss has been reported (e.g. district attorney, police, disciplinary agency, or other person or entity) and a copy of any complaint and description of any action that was taken;

      12. the source, if any, from which the loss can be reimbursed including any insurance, fidelity or surety agreement;

      13. the description of any steps taken to recover the loss directly from the lawyer, or any other source;

      14. the circumstances under which the claimant has been, or will be, reimbursed for any part of the claim (including the amount received, or to be received, and the source); along with a statement that the claimant agrees to notify the Board of any reimbursements the claimant receives during the pendency of the claim;

      15. the existence of facts believed to be important to the Fund’s consideration of the claim;

      16. the manner in which the claimant learned about the Fund:

      17. the name, address and telephone number of the claimant's present lawyer;

      18. the claimant's agreement to cooperate with the Board in reference to the claim or as required by Rule 16, in reference to civil actions which may be brought in the name of the Board pursuant to a subrogation and assignment clause which shall also be contained within the claim.

      19. the claimant’s agreement to repay Fund if the claimant is subsequently reimbursed from another source;

      20. The name and address of any other state Fund to which the claimant has applied or intends to apply for reimbursement, together with a copy of the application; and

      21. A statement that the claimant agrees to the publication of appropriate information about the nature of the claim and the amount of reimbursement if reimbursement is made.

    4. The claimant shall have the responsibility to complete the claim form and provide satisfactory evidence of a reimbursable loss.
    5. The claim shall be filed with the Board in the manner and place designated in the Board’s rules.

    Comment

    The Board is required to develop a claim form for claimants to establish their eligibility for reimbursement. The form should be comprehensive enough to minimize the investigative burden of the Board, yet not so detailed as to discourage eligible claimants from applying for reimbursement.

    The enumeration in Paragraph B has been developed from claim forms in current use in several jurisdictions. Local need may require the enumeration to be supplemented by the Board. See also, Paragraph A of Rule 18 , which addresses confidentiality.

    Paragraph C assigns the ultimate burden of establishing eligibility for reimbursement upon the claimant. No formal or technical quantum of proof is imposed on the claimant or the Board. In many cases, of course, the lawyers' dishonest conduct will already have been established in a lawyer discipline action upon the "clear and convincing evidence" standard or, "beyond a reasonable doubt" in a criminal proceeding involving the same facts which constitute the claim for reimbursement. ( See, Rule 18C of the ABA Model Rules for Lawyer Disciplinary Enforcement.)


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