Ezel / Ethics Opinions / SBAND

To whom did the lawyer return an unused retainer paid by a third party?

Short answer On the stated facts, the committee said to return the funds to the third party who paid, less earned fees and costs, unless that payer directed otherwise.
Bar
SBAND
Issued
May 8, 1991
Source
View Original PDF

Apply this to your situation

This page answers the general question as of 1991. Ask about yours and see what the current North Dakota Rules of Professional Conduct say for your facts, with citations.

How much weight this carries: Under North Dakota Rule for Lawyer Discipline 1.2(B), a lawyer who acts in good faith and in reasonable reliance on a written opinion of the association's ethics committee is not subject to sanction for the conduct the opinion addresses. Source.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
View original ethics opinion (PDF)

Plain-English summary

A third party had paid a $500 retainer for a prisoner's federal appeal work. After the prisoner requested his papers and the retainer back, the lawyer asked the committee who should receive the remaining funds and whether costs could be deducted.

The committee said the money belonged back with the payer, subject to earned fees and costs. It summarized its answer this way: “the funds in question, minus your costs and applicable fees, should be returned to the third party from whom you receive payment unless that party directs otherwise.”

Currency note

This opinion was issued in 1991, before North Dakota's 2006 revisions to its Rules of Professional Conduct. The later North Dakota Opinion 06-05 states: “On August 1, 2006, material changes to N.D.R. Prof. Conduct 1.10(a) will take effect.” 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 Treat this page as historical context, not current guidance.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.

Common questions

Q: Who received the remaining retainer on these facts?

A: The third party who sent the payment, unless that payer directed otherwise.

Q: Could the lawyer deduct costs and fees?

A: The committee said the lawyer was entitled to retain earned costs and fees, although the lawyer could choose to forego them.

Background and rules framework

The committee cited North Dakota Rule 1.15's requirements to keep client or third-party funds separate from the lawyer's property and account for them.

Citations and references

Rules of Professional Conduct:

  • Rule 1.15, safekeeping and accounting for client or third-party funds.

See also

Source

Original opinion text

Full opinion text unavailable from the official source; see the linked source above for the complete text.

What do the rules say today, for your facts?

This opinion is from 1991. Ezel checks the current North Dakota Rules of Professional Conduct against your situation and cites the rules it relies on.

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