May a lawyer use a bank's interest-bearing master/subsidiary 'Super Now' escrow account for client trust funds, and can the bank's bookkeeping access to client data be squared with confidentiality?

Plain-English summary

A bank asked the Committee about a proposed interest-bearing escrow product for attorneys: a "Super Now" master account earning money-market rates, under which each client would have a numbered subsidiary account and one subsidiary account would hold the attorney's own funds (for bank charges and returned items). The attorney would make an initial deposit of his own money and of client funds to satisfy the bank's minimum, and would furnish the bank with client information (name, address, social security number, the nature of deposits and disbursements, and the nature of the matter), which the bank's clerical employees would be able to access. The bank asked three questions: whether the account violated DR 9-102, whether the bookkeeping service violated DR 4-101 confidentiality, and whether the bank's monthly statement satisfied the recordkeeping rule R. 1:21-6(b).

On the first question, the Committee concluded the proposal appeared to comply with DR 9-102: the escrow funds would be in identifiable New Jersey bank accounts segregated from the attorney's personal funds, the numbered subsidiary accounts satisfied the "identifiable" requirement, and the attorney's own funds for bank charges fit DR 9-102(A)(1). It added that the earnings on the funds would be the property of the client. On the second question, the Committee concluded that furnishing the listed client information for access by bank clerks would constitute a breach of client confidentiality under DR 4-101, but that DR 4-101(C)(1) supplied the solution: with the client's consent after full disclosure, the information could be supplied. It observed that consent should be sought in the first instance, and that if the client did not wish the information disclosed the attorney could not disclose it; absent consent, the information came within the confidentiality rule. On the third question, and on whether the format complied with R. 1:21-6, the Committee declined to opine, stating those matters were outside its jurisdiction and should be presented to the Administrative Office of the Courts.

Currency note

This opinion was issued in 1984, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct, and it was decided under the now-superseded Disciplinary Rules (DR 9-102 is now RPC 1.15; DR 4-101 is now RPC 1.6). New Jersey's IOLTA program and the trust-accounting rules have also developed since. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could a lawyer hold client trust funds in an interest-bearing master/subsidiary bank account?

A: The opinion concluded the proposed segregated "Super Now" master-and-subsidiary account complied with the trust-account rule because the numbered subsidiary accounts kept client funds identifiable and separate from the attorney's funds.

Q: Who owned the interest the account earned?

A: Per the opinion, the earnings on the funds were the property of the client.

Q: Could the bank's bookkeeping staff be given client information?

A: Only with consent. The opinion concluded that giving bank clerks the client information would breach confidentiality under DR 4-101 unless the client consented after full disclosure under DR 4-101(C)(1).

Q: Did the Committee decide whether the bank's statements met the recordkeeping rule?

A: No. The Committee declined to opine on compliance with R. 1:21-6, stating that question was outside its jurisdiction and should go to the Administrative Office of the Courts.

Background and rules framework

The opinion applies the client trust-fund rule, DR 9-102 (now RPC 1.15, safekeeping property), and the confidentiality rule, DR 4-101 (now RPC 1.6), to a bank product. It treats the bank's monthly statements and compliance with the recordkeeping rule R. 1:21-6 as administrative questions for the Administrative Office of the Courts rather than ethics questions.

Citations and references

Rules of Professional Conduct:

• MR 1.15 / NJ RPC 1.15 (safekeeping property; formerly DR 9-102)
• MR 1.6 / NJ RPC 1.6 (confidentiality of information; formerly DR 4-101)

Court rules:

• R. 1:21-6 (attorney recordkeeping; the Committee declined to opine on compliance)

See also

• NJ ACPE Op. 582: Trust-Account Interest Belongs to the Client
• NJ ACPE Op. 574: Investment of Trust Funds in New Jersey Financial Institutions
• NJ ACPE Op. 659: Collection Attorney - Client Waiver of Trust-Account Interest

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp537-1.html
• Issuing authority: New Jersey Supreme Court Advisory Committee on Professional Ethics, via the NJ Courts Supreme Court Committees page

Original opinion text

Reproduced from a full-text mirror of the official opinion for research purposes. The linked official source controls.

114 N.J.L.J. 68, July 19, 1984

OPINION 537

Attorneys' Trust Accounts - Use Of "Super Now Accounts"

The inquirer represents a banking corporation organized and existing under the laws of the State of New Jersey, and in that capacity has submitted to this Committee for its opinion the propriety of certain proposed attorneys' bank accounts which the bank has been considering establishing with reference to "escrow accounts for attorneys." The factual situation for consideration presented by the inquirer is as follows:

The Bank desires to offer interest bearing escrow accounts for attorneys. Each attorney or law firm will have a master account under which there will be subsidiary accounts for each client. Also, one of the subsidiary accounts will be designated as the attorney's account to be used exclusively for the deposit of the attorney's money and debited for service charges, return items, etc., incurred in connection with the master account. Each subsidiary account, including the attorney's subsidiary account, will bear its own account number (e.g. if the master account number is 100, the subsidiary accounts might be 100-1, 100-2... etc.).

It is anticipated that the master account will be a "Super Now Account", which earns money market account interest rates. The attorney will be required to make an initial deposit in the amount of $1,000.00 of his own money into his subsidiary account, together with an initial deposit in the amount of at least $1,500.00 of clients' funds to be deposited into clients' subsidiary accounts, thus satisfying the required minimum initial deposit of $2,500.00. The Federal Reserve Bank of New York has advised me that the master account will be deemed one account for purposes of determining the required initial deposit in the amount of $2,500.00.

The attorney will furnish the Bank with certain information regarding his clients (e.g. name, address, social security number, nature of deposits and disbursements, nature of the case or manner in which the client is being represented, etc.). Clerical employees of the Bank will have access to this information. The questions that have been raised are as follows:

1. Will the proposed bank account violate DR 9-102? 2. Do the bookkeeping services provided by the Bank violate DR 4-101 pertaining to the preservation of confidences and secrets of a client; and 3. Will the monthly account statement provided by the Bank to the attorney comply with the required bookkeeping records described in R. 1:21-6(b)?

DR 9-102 provides in part as follows:

A) All funds of clients paid to a lawyer or law firm, other than advances for costs and expenses, and all escrow funds, shall be deposited in one or more identifiable bank accounts maintained in this State, and no funds belonging to the lawyer or law firm shall be deposited therein except as follows: (1) Funds reasonably sufficient to pay bank charges may be deposited therein. (2) Funds belonging in part to a client, a portion of which the lawyer or law firm will be entitled to receive for his own use must be deposited therein, but the portion belonging to the lawyer or law firm may be withdrawn when due unless the right of the lawyer or law firm to receive it is disputed by the client, in which event the disputed portion shall not be withdrawn until the dispute is finally resolved.

We are of the opinion that the proposal as presented appears to be in compliance with DR 9-102 in that the escrow funds are to be deposited in one or more identifiable bank accounts maintained in this state and apparently are to be kept segregated from the attorney's personal funds. The identification of the subsidiary accounts with separate subsection numbers as set forth in the proposal appears to comply with the requirement of "identifiable bank accounts." The attorney's own funds required to be deposited in the master account and to be used for the purposes set forth in the facts, namely: "This account to be debited for bank charges and the required balance will be deemed consideration in lieu of fees charged for the accounting services provided," appears to be in conformity with DR 9-102(A)(1).

With respect to inquiry #1, therefore, we are of the opinion that there would be no ethical violation if the accounts were to be maintained as presented by the recited facts. The earnings thereon, of course, would be the property of the client.

It is not within our jurisdiction, however, to render an opinion as to whether the suggested bank account or accounts would be in compliance with R. 1:21-6 and the various subsections thereof. In this regard, we suggest that the format be presented to the Administrative Office of the Courts for consideration and approval.

The second question that has been presented is as follows: Do the bookkeeping services provided by the Bank violate DR 4-101 pertaining to the preservation of confidences and secrets of a client?

DR 4-101(A) defines "confidence" and "secret" as follows:

(A) "Confidence" refers to information protected by the attorney-client privilege under applicable law, and "secret" refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.

It should be noted that the Bank intends that "the attorney will furnish the Bank with certain information regarding his clients (e.g. name, address, social security number, nature of deposits and disbursements, nature of the case or manner in which the client is being represented, etc.). Clerical employees of the Bank will have access to this information." Such disclosure would constitute a breach of a client's "confidentiality." DR 4-101(C), in our opinion, provides the solution to the prohibition against disclosure of confidential information required by the bank. DR 4-101(C) provides, in part, as follows: (C) A lawyer may reveal: (1) Confidences or secrets with the consent of the client or clients affected, but only after a full disclosure to them.

Therefore, upon compliance with DR 4-101(C)(l), the information could be supplied to the bank. From a practical viewpoint, and without regard to the question of compliance with or breach of the rule of confidentiality, it appears to this Committee that such consent should be sought, in any event, in the first instance. If the client does not wish to have the requested information disclosed, then certainly the attorney should not, and could not, do so. We, therefore, hold that absent consent, the requested information comes within the rule of confidentiality.

The inquirer suggests that "the Bank's bookkeeping services require disclosure in order to conform with the requirements of the New Jersey Court Rules concerning attorneys' record keeping." This is a matter of administrative requirements and is not within the province of this Committee.

The third inquiry is stated as follows: Will the monthly account statement provided by the Bank to the attorney comply with the required bookkeeping records described in R. 1:21-6(b)?

We must decline to answer this question on the grounds that the same does not come within our jurisdiction and is a matter of law which should be submitted to the Administrative Office of the Courts.