LAWYERS AND OTHER PEOPLE’S MONEY Fifth Edition FRANK A. THOMAS, III Shackelford, Thomas & Gregg Orange, Virginia KATHLEEN M. USTON Virginia State Bar Alexandria, Virginia THIS BOOK IS PRESENTED WITH THE UNDERSTANDING THAT THE AUTHOR AND THE PUBLISHER DO NOT RENDER ANY LEGAL, ACCOUNTING, OR OTHER PROFESSIONAL SERVICE. THE BOOK IS INTENDED FOR USE BY ATTORNEYS LICENSED TO PRACTICE LAW IN VIRGINIA. BECAUSE OF THE RAPIDLY CHANGING NATURE OF THE LAW, INFORMATION CONTAINED IN THIS PUBLICATION MAY BECOME OUTDATED. AS A RESULT, AN ATTORNEY USING THIS MATERIAL MUST ALWAYS RESEARCH ORIGINAL SOURCES OF AUTHORITY AND UPDATE INFORMATION TO ENSURE ACCURACY WHEN DEALING WITH A SPECIFIC CLIENT’S LEGAL MATTERS. IN NO EVENT WILL THE AUTHOR, THE REVIEWERS, OR THE PUBLISHER BE LIABLE FOR ANY DIRECT, INDIRECT, OR CONSEQUENTIAL DAMAGES RESULTING FROM THE USE OF THIS MATERIAL. THE VIEWS EXPRESSED HEREIN DO NOT NECESSARILY REPRESENT THOSE OF THE VIRGINIA STATE BAR. Citations to statutes, rules, and regulations are to the versions in effect at the time the material was written, unless otherwise noted. An effort has been made to ensure the material is current as of April 2012. Copyright © 2012 Virginia State Bar. All rights reserved. ABOUT THE AUTHORS Frank A. Thomas, III, Shackelford, Thomas & Gregg, Orange, Virginia. Frank A. Thomas, III has been a member of the Orange and Culpeper law firm of Shackelford, Thomas & Gregg since 1985. Mr. Thomas is currently a member of the Board of The Virginia Law Foundation. He also serves as Assistant Commissioner of Accounts of Orange County, Virginia. He is a fellow of the American College of Trusts and Estates Counsel, the American Bar Foundation, and The Virginia Law Foundation. Mr. Thomas is listed in The Best Lawyers in America. Mr. Thomas was formerly associated with the Richmond, Virginia office of the Hunton & Williams law firm from 1974 to 1980 and the Staunton, Virginia firm of Timberlake, Smith, Thomas & Moses from 1980 to 1985. He has served on the Board of Governors of the Trusts and Estates Section of the Virginia State Bar and as Section Chair. He also served as Chair of the Wills, Trusts & Estates Section of the Virginia Bar Association, as well as on the Section’s Council and Legislative Committee. He is a past President of the Virginia Bar Association. Mr. Thomas attended the University of Virginia, where he earned B.A. and M.A. degrees in English and a J.D. from the University of Virginia School of Law. He was a notes editor for the Virginia Law Review and a member of the Order of the Coif. Kathleen M. Uston, Virginia State Bar, Alexandria, Virginia. Kathleen M. Uston is an Assistant Bar Counsel with the Virginia State Bar in Alexandria, Virginia. She received her J.D. from George Mason University School of Law in 1991 where she served as President of the Student Bar Association and as a Justice on the Moot Court Board. Ms. Uston was previously in private practice doing ethical defense, GAL work, and civil litigation. While in private practice, she also served as a Commissioner in Chancery for the Circuit Court for the City of Alexandria. i A BOU T THE A UTHOR S Ms. Uston is a past President of the VSB Young Lawyers Conference during which time she served on the VSB Council and Executive Committee. She also served on the YLC Board of Governors, and is formerly vice-chair of the American Bar Association Young Lawyers Division Solo and Small Firm Committee. Ms. Uston currently serves as a member of the Program Committee for the National Organization of Bar Counsel. Ms. Uston has lectured extensively on the subject of attorney ethics. ii Contents ABOUT THE AUTHORS ...................................................................................................... i INTRODUCTION ..................................................................................................................... 5 SECTION 1: FUNDS AND OTHER PROPERTY OF CLIENTS ............................................. 7 1.1 In General ............................................................................................................. 7 1.2 Rule 1.15 ................................................................................................................ 8 1.3 Scope .................................................................................................................... 10 1.4 Other Property .................................................................................................... 10 1.5 Types of Trust Accounts ...................................................................................... 11 1.6 Interest and Other Investments ......................................................................... 12 1.7 Recordkeeping and Accounting ........................................................................... 13 1.8 Deposits into Trust Accounts—Commingling .................................................... 17 1.9 Withdrawals from the Trust Account—Conversion ........................................... 19 1.10 Mitigating Circumstances—Vicarious Responsibility ..................................... 24 SECTION 2: BUSINESS TRANSACTIONS WITH CLIENTS .............................................. 26 2.1 In General ........................................................................................................... 26 2.2 Activities and Relationships ............................................................................... 27 2.3 Prohibited Economic Relationships .................................................................... 29 2.4 Full and Adequate Disclosure; Independent Counsel ........................................ 31 2.5 Ancillary Businesses ........................................................................................... 33 2.6 Lawyer as a Fiduciary ........................................................................................ 37 SECTION 3: FEES .................................................................................................................. 40 3.1 In General ........................................................................................................... 40 3.2 Contingent Fees .................................................................................................. 43 iii 3.3 Percentage Fees .................................................................................................. 45 3.4 Hourly Rates ....................................................................................................... 46 3.5 Hybrid and Other Fees ....................................................................................... 47 3.6 Fee Agreements................................................................................................... 48 3.7 Division of Fees ................................................................................................... 52 3.8 Collection and Termination of Employment ...................................................... 53 CONCLUSION ........................................................................................................................ 57 APPENDIX 1: SELECTED VIRGINIA RULES OF PROFESSIONAL CONDUCT AND COMMENTARY ........................................................................ 58 APPENDIX 2: PART 6, SECTION IV, PARAGRAPH 20, RULES OF THE SUPREME COURT OF VIRGINIA ............................................................ 81 APPENDIX 3: ESCROW ACCOUNT RECORD-KEEPING AND ACCOUNTING FORMS ......................................................................................... 87 APPENDIX 4: SUMMARIES OF CITED LEGAL ETHICS OPINIONS .............................. 93 INDEX ................................................................................................................................... 129 iv INTRODUCTION Concerns about the honesty and integrity of lawyers predate formal codes of legal ethics and disciplinary proceedings. An early English statute provides: That if any Serjeant, Pleader or other do any Manner of Deceit or Collusion in the King’s Court, or consent unto it, in Deceit of the Court, or to beguile the Court, or the Party, and thereof be attainted, he shall be imprisoned for a Year and a Day and from thereafter shall not be heard to plead in that Court for any Man.1 A nineteenth-century treatise on lawyers finds the law to require the highest degree of fairness and good faith of a lawyer in dealings with clients.2 The treatise declares that lawyers are liable to their clients for any sums belonging to the clients that are not paid over when received or which are commingled with the lawyer’s funds.3 Nowhere does the concern about lawyer honesty and integrity become more intense than in the case of lawyers dealing with their clients’ money. A lawyer’s responsibility for a client’s money is now largely defined by ethical codes that in turn draw heavily on the laws of agency and trusts. A lawyer occupies the dual role of an agent and a trustee in dealings with clients4 and is held to the high standards of accountability one would normally expect from such fiduciaries. A lawyer is more than just a fiduciary; he or she is an officer of the court. Errors or misdeeds by the lawyer reflect poorly not only on the legal profession, but on the system of the administration of justice as well.5 It is no wonder that courts appear to be willing to mete out the stiff disciplinary punishments of disbarment and suspension with little hesitation when addressing a lawyer who has improperly handled a client’s funds. While a simple