Can a New York lawyer use an ATM to make deposits into the attorney trust (special) account?

Plain-English summary

The committee was asked whether a lawyer may use an ATM to deposit funds into a special account required by DR 9-102(B). DR 9-102 requires client funds to be held in a properly titled special account at a New York bank that provides dishonored-check reports, and imposes detailed recordkeeping: the lawyer must record the date, source, and description of each deposit (DR 9-102(D)(1)) and retain duplicate deposit slips and related records for seven years.

The committee concluded that ATM deposits are permissible if the lawyer satisfies these requirements. The lawyer must use a deposit slip bearing the special-account title and keep a duplicate; must keep the ATM-generated record (showing amount, account, date, time, and place) with the duplicate deposit slip as proof pending official bank verification; must maintain the independent record of date, source, and description required by DR 9-102(D)(1); and must verify that the deposit is accurately reflected on the later bank statement. The committee noted other jurisdictions permit ATM deposits with careful oversight (citing California and Massachusetts authorities).

The committee drew a firm line at withdrawals: a lawyer may not use an ATM to withdraw from a special account, because DR 9-102(E) requires all special-account withdrawals to be made to a named payee and not to cash, which an ATM cash withdrawal would violate.

In practice

Under the Code as it stood in 2002, the opinion concluded that ATM deposits into the attorney trust account are acceptable so long as the lawyer carefully documents each deposit: a titled deposit slip and its duplicate, the retained ATM receipt, the independent date-source-description record, and verification against the bank statement, all kept for seven years.

The opinion concluded that ATM withdrawals from a special account are not permitted, because DR 9-102(E) requires withdrawals to be paid to a named payee rather than to cash.

Common questions

Q: Can a New York lawyer deposit client funds into the trust account at an ATM?

A: Yes. The opinion concludes ATM deposits are permitted if the lawyer uses a titled deposit slip, retains the ATM record and duplicate slip for seven years, keeps the required independent record, and verifies the deposit on the bank statement.

Q: Can the lawyer withdraw from the trust account at an ATM?

A: No. The opinion holds an ATM withdrawal would violate DR 9-102(E), which requires special-account withdrawals to be made to a named payee and not to cash.

Background and rules framework

The opinion interprets New York's former Code of Professional Responsibility, principally DR 9-102 (safekeeping client property): subsection (B) (special-account requirements and titling), subsection (D) (recordkeeping and seven-year retention), and subsection (E) (withdrawals to a named payee, not cash). The Model Rules analogue is Rule 1.15 (safekeeping property and trust-account records). New York replaced this Code with the Rules of Professional Conduct in 2009; the DR numbers cited here are historical.

Citations and references

Rules of Professional Conduct:

• MR 1.15 (safekeeping property; trust-account records)
• NY DR 9-102(B), DR 9-102(D), DR 9-102(E)

Other opinions cited:

• N.Y. State 680 (1996): which trust records must be kept in original form
• N.Y. State 758 (2002): electronic retention of trust account records

See also

• NY State Bar Op. 758: Electronic retention of trust account records
• NY State Bar Op. 764: IOLA earnings credit and client consent
• NY State Bar Op. 760: Power of attorney to settle and endorse a settlement check

Source

• Landing page: https://nysba.org/ethics-opinion-759/