The Supreme Court of South Carolina
Re: Amendments to Rule 417, South Carolina Appellate Court Rules
ORDER
The South Carolina Bar has proposed amending Rule 417, South Carolina Appellate Court Rules, to adopt the American Bar Association's Model Rules for Client Trust Account Records. The amendments are designed to set forth practical trust accounting information, provide cautionary information on electronic check conversions, and explain Automated Clearing House transactions. The amendments also address issues related to record maintenance and outline necessary safeguards which a lawyer must have in place when using electronic record storage systems.
Pursuant to Article V, § 4, of the South Carolina Constitution, we hereby adopt Rule 417, South Carolina Appellate Court Rules, as amended, and as set forth in the attachment to this order. The amendments are effective immediately.
IT IS SO ORDERED.
s/Jean H. Toal C.J. s/Costa M. Pleicones J. s/Donald W. Beatty J. s/John W. Kittredge J. s/Kaye G. Hearn J. |
Columbia, South Carolina
September 9, 2011
RULE 417
FINANCIAL RECORDKEEPING
RULE 1
RECORDKEEPING GENERALLY
A lawyer who practices in this jurisdiction shall maintain current financial records as provided in these Rules and required by Rule 1.15 of the South Carolina Rules of Professional Conduct, and shall retain the following records for a period of six years after termination of the representation:
(a) receipt and disbursement journals containing a record of deposits to and withdrawals from client trust accounts, specifically identifying the date, source, and description of each item deposited, as well as the date, payee, and purpose of each disbursement;
(b) ledger records for all client trust accounts showing, for each separate trust client or beneficiary, the source of all funds deposited, the names of all persons for whom the funds are or were held, the amount of such funds, the descriptions and amounts of charges or withdrawals, and the names of all persons or entities to whom such funds were disbursed;
(c) copies of retainer and compensation agreements with clients as required by Rule 1.5 of the South Carolina Rules of Professional Conduct;
(d) copies of accountings to clients or third persons showing the disbursement of funds to them or on their behalf;
(e) copies of bills for legal fees and expenses rendered to clients;
(f) copies of records showing disbursements on behalf of clients;
(g) the physical or electronic equivalents of all checkbook registers, bank statements, records of deposit, pre-numbered canceled checks, and substitute checks provided by a financial institution;
(h) records of all electronic transfers from client trust accounts, including the name of the person authorizing transfer, the date of transfer, the name of the recipient and confirmation from the financial institution of the trust account number from which money was withdrawn, and the date and the time the transfer was completed;
(i) copies of monthly trial balances and monthly reconciliations of the client trust accounts maintained by the lawyer; and
(j) copies of those portions of client files that are reasonably related to client trust account transactions.
Comment
[1] Rule 1 enumerates the basic financial records that a lawyer must maintain with regard to all client trust accounts of a law firm. These include the standard books of account and the supporting records that are necessary to safeguard and account for the receipt and disbursement of client or third person funds as required by Rule 1.15 of the South Carolina Rules of Professional Conduct. Consistent with Rule 1.15, this Rule proposes that lawyers maintain client trust account records for a period of six years after termination of each particular legal engagement or representation.
[2] Rule 1(g) requires that the physical or electronic equivalents of all checkbook registers, bank statements, records of deposit, pre-numbered canceled checks, and substitute checks be maintained for a period of six years after termination of each legal engagement or representation. The "Check Clearing for the 21st Century Act" or "Check 21 Act", codified at 12 U.S.C. §5001 et. seq., recognizes "substitute checks" as the legal equivalent of an original check. A "substitute check" is defined at 12 U.S.C. §5002(16) as a "paper reproduction of the original check that contains an image of the front and back of the original check; bears a magnetic ink character recognition ("MICR") line containing all the information appearing on the MICR line of the original check; conforms with generally applicable industry standards for substitute checks; and is suitable for automated processing in the same manner as the original check. Banks, as defined in 12 U.S.C. §5002(2), are not required to return to customers the original canceled checks. Most banks now provide electronic images of checks to customers who have access to their accounts on internet-based websites. It is the lawyer's responsibility to download electronic images. Electronic images shall be maintained for the requisite number of years and shall be readily available for printing upon request or shall be printed and maintained for the requisite number of years.
[3] The ACH (Automated Clearing House) Network is an electronic funds transfer or payment system that primarily provides for the inter-bank clearing of electronic payments between originating and receiving participating financial institutions. ACH transactions are payment instructions to either debit or credit a deposit account. ACH payments are used in a variety of payment environments including bill payments, business-to-business payments, and government payments (e.g. tax refunds). In addition to the primary use of ACH transactions, retailers and third parties use the ACH system for other types of transactions including electronic check conversion (ECC). ECC is the process of transmitting MICR information from the bottom of a check, converting check payments to ACH transactions depending upon the authorization given by the account holder at the point-of-purchase. In this type of transaction, the lawyer should be careful to comply with the requirements of Rule 1(h).
[4] There are five types of check conversions where a lawyer should be careful to comply with the requirements of Rule 1(h). First, in a "point-of-purchase conversion," a paper check is converted into a debit at the point of purchase and the paper check is returned to the issuer. Second, in a "back-office conversion," a paper check is presented at the point of purchase and is later converted into a debit and the paper check is destroyed. Third, in an "account-receivable conversion,"a paper check is converted into a debit and the paper check is destroyed. Fourth, in a "telephone-initiated debit" or "check-by-phone" conversion, bank account information is provided via the telephone and the information is converted to a debit. Fifth, in a "web-initiated debit," an electronic payment is initiated through a secure web environment. Rule 1(h) applies to each type of electronic funds transfer described. All electronic funds transfers shall be recorded and a lawyer should not re-use a check number which has been previously used in an electronic transfer transaction.
[5] The potential for these records to serve as safeguards is realized only if the procedures set forth in Rule 1(i) are regularly performed. The trial balance is the sum of balances of each client's ledger card (or the electronic equivalent). Its value lies in comparing it on a monthly basis to a control balance. The control balance starts with the previous month's balance, then adds receipts from the Trust Receipts Journal and subtracts disbursements from the Trust Disbursements Journal. Once the total matches the trial balance, the reconciliation readily follows by adding amounts of any outstanding checks and subtracting any deposits not credited by the bank at month's end. This balance should agree with the bank statement. Monthly reconciliation is required by this rule.
[6] In some situations, documentation in addition to that listed in paragraphs (a) through (i) of Rule 1 is necessary for a complete understanding of a trust account transaction. The type of document that a lawyer must retain under paragraph (j) because it is "reasonably related" to a client trust transaction will vary depending on the nature of the transaction and the significance of the document in shedding light on the transaction. Examples of documents that typically must be retained under this paragraph include correspondence between the client and lawyer relating to a disagreement over fees or costs or the distribution of proceeds, settlement agreements contemplating payment of funds, settlement statements issued to the client, documentation relating to sharing litigation costs and attorney fees for subrogated claims, agreements for division of fees between lawyers, guarantees of payment to third parties out of proceeds recovered on behalf of a client, and copies of bills, receipts or correspondence related to any payments to third parties on behalf of a client (whether made from the client's funds or from the lawyer's funds advanced for the benefit of the client).
RULE 2
CLIENT TRUST ACCOUNT SAFEGUARDS
With respect to client trust accounts required by Rule 1.15 of the South Carolina Rules of Professional Conduct:
(a) only a lawyer admitted to practice law in this jurisdiction or a person under the direct supervision of the lawyer shall be an authorized signatory or authorize transfers from a client trust account;
(b) receipts shall be deposited intact and records of deposit should be sufficiently detailed to identify each item; and
(c) withdrawals shall be made only (i) by check payable to a named payee and not to cash, or (ii) by authorized electronic transfer.
Comment
[1] Rule 2 enumerates minimal accounting controls for client trust accounts. It also enunciates the requirement that only a lawyer admitted to the practice of law in this jurisdiction or a person who is under the direct supervision of the lawyer shall be the authorized signatory or be permitted to authorize electronic transfers from a client trust account. While it is permissible to grant nonlawyer access to a client trust account, such access should be limited and closely monitored by the lawyer. If a lawyer chooses to grant nonlawyer access to a client trust account, the nonlawyer must be an individual under the direct supervision and control of the lawyer. A lawyer should never grant access to closing companies or other, similar entities. The lawyer has a non-delegable duty to protect and preserve the funds in a client trust account and can be disciplined for failure to supervise subordinates who misappropriate client funds. See Rules 5.1 and 5.3 of the South Carolina Rules of Professional Conduct.
[2] The requirement in paragraph (b) that receipts shall be deposited intact means that a lawyer cannot deposit one check or negotiable instrument into two or more accounts at the same time, a practice commonly known as a split deposit.
RULE 3
AVAILABILITY OF RECORDS
Records required by Rule 1 may be maintained by electronic, photographic, or other media provided that they otherwise comply with these Rules and that printed copies can be produced. These records shall be readily accessible to the lawyer.
Comment
Rule 3 allows the use of alternative media for the maintenance of client trust account records if printed copies of necessary reports can be produced. If trust records are computerized, a system of regular and frequent (preferably daily) backup procedures is essential. If a lawyer uses third-party electronic or internet based file storage, the lawyer must make reasonable efforts to ensure that the company has in place, or will establish reasonable procedures to protect the confidentiality of client information. See ABA Formal Ethics Opinion 398 (1995). Records required by Rule 1 shall be readily accessible and shall be readily available to be produced upon request of a client or third person who has an interest as provided in Rule 1.15 of the South Carolina Rules of Professional Conduct, or upon official request of a disciplinary authority, including but not limited to, a subpoena duces tecum. Personally identifying information in records produced upon request of a client, third person, or disciplinary authority shall remain confidential and shall be disclosed only in a manner to ensure client confidentiality as otherwise required by law or court rule.
RULE 4
DISSOLUTION OF LAW FIRM OR SALE OF LAW PRACTICE
Upon dissolution of a law firm or of any legal professional corporation or the sale of a law practice, the partners shall make reasonable arrangements for the maintenance of the client trust account records specified in Rule 1.
Comment
This rule provides for the preservation of a lawyer's trust account records in the event of dissolution or sale of a law practice. Regardless of the arrangements the partners or shareholders make among themselves for maintenance of the records, each partner may be held responsible for ensuring the availability of these records. For the purposes of these Rules, the terms "law firm," "partner," and "reasonable" are defined in accordance with Rules 1.0(e), (i), and (j) of the South Carolina Rules of Professional Conduct.
RULE 5
AUTHORIZED ELECTRONIC TRANSFERS
Authorized electronic transfers involving client trust accounts shall be limited to:
(a) money required for payment to a client or third person on behalf of a client;
(b) expenses properly incurred on behalf of a client, such as filing fees or payment to third persons for services rendered in connection with the representation;
(c) money transferred to the lawyer for fees that are earned in connection with the representation and are not in dispute; and
(d) money transferred from one client trust account to another client trust account.
RULE 6
NO BEARER ITEMS
No item shall be drawn on a trust account or fiduciary account made payable to cash or bearer, and no cash shall be withdrawn from a trust account or fiduciary account by means of a debit card or ATM card.