What must a Utah lawyer do with trust funds held for a client the lawyer cannot locate?

Plain-English summary

Opinion 97-01 addressed a lawyer who holds trust funds for a client (or former client) the lawyer is unable to locate. The Committee concluded that the lawyer's first obligation was to secure the funds on the client's behalf against all other possible claimants. If the funds were still in the form of a check, the lawyer should endorse and deposit it into the trust account so the funds would not be lost through the passage of time or expiration of the right to negotiate the instrument, then keep the property safe in conformity with Rule 1.15. For substantial sums or a lengthy delay, the opinion said the funds should be placed in an interest-bearing account.

After securing the funds, the lawyer had to make all reasonable, diligent efforts to locate the client, including contacting last known addresses and telephone numbers, seeking forwarding addresses, and contacting relatives, employers, or friends. The opinion said it might even be appropriate to hire an investigator for large sums, subject to a rule of reasonableness: spending all of the funds to find the client is not warranted, but spending a substantial sum to locate the client and transfer the balance may be appropriate.

If the lawyer still could not locate the client, the opinion said the lawyer should hold the funds for a substantial period and, once the property became abandoned or unclaimed under the Utah Code, follow the statutory procedure for reporting and submitting unclaimed property. The Committee emphasized it was not authorized to interpret matters of law, so it did not resolve the exact statutory procedure. The opinion expressly overruled Utah Ethics Advisory Opinion No. 43 (issued March 3, 1978).

Currency note

This opinion was issued in 1997, before the Utah State Bar's adoption of the 2005 revisions to the Rules of Professional Conduct (the Ethics 2000-based amendments approved by the Utah Supreme Court on September 29, 2005). 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 Treat this page as historical context, not current guidance.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: What is the first thing a Utah lawyer must do with trust funds for a client who cannot be found?

A: The opinion said the first obligation is to secure the funds on the client's behalf against other claimants, including depositing any check into the trust account so the funds are not lost, and keeping the property safe under Rule 1.15.

Q: How hard must the lawyer look for the missing client?

A: The opinion required all reasonable, diligent efforts, such as contacting last known addresses, phone numbers, and relatives or employers, and said hiring an investigator may be appropriate for large sums, subject to a rule of reasonableness.

Q: What happens if the client is never located?

A: The opinion said the lawyer should hold the funds for a substantial period and, once they became abandoned or unclaimed property under the Utah Code, follow the statutory unclaimed-property procedure; the Committee did not interpret the exact statutory steps.

Background and rules framework

The opinion interpreted Utah Rule of Professional Conduct 1.15 (safekeeping property), which requires a lawyer to hold client property securely and separate from the lawyer's own property. It paired that duty with Utah's unclaimed-property statute (Utah Code Ann. §§ 67-4a-201 to -214 and 67-4a-301 to -303 (1996)), while noting the Committee could not interpret the statute. Rule 1.15 corresponds to ABA Model Rule 1.15.

Citations and references

Rules of Professional Conduct:

• MR 1.15 / Utah RPC 1.15 (safekeeping property)

Statutes:

• Utah Code Ann. §§ 67-4a-201 to -214 (1996) (abandoned/unclaimed property)
• Utah Code Ann. §§ 67-4a-301 to -303 (1996) (reporting and submitting unclaimed property)

Other opinions cited:

• Utah Ethics Advisory Opinion No. 43 (Mar. 3, 1978): overruled by this opinion

See also

• AL Ethics Op. 1988-92: Unclaimed Trust Funds
• Alaska Ethics Op. 92-3: Third-Party Claims to Client Funds
• ABA Formal Op. 471: Surrendering the Client File

Source

• Landing page: https://www.utahbar.org/ethics-opinions/
• Original PDF: https://www.utahbar.org/wp-content/uploads/2022/12/1997-01.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Utah Ethics Opinions (Attorney's and investigators' fees associated with the search might appropriately be paid out of the trust fund. 1997. (fn2) ) 97-01. USB EAOC Opinion No. 97-01 If the attorney is still unable to locate the client, then the attorney should hold the funds for a substantial period of Utah State Bar time to see if the client or former client voluntarily makes contact with the attorney. Specifically, under Utah law, Ethics Advisory Opinion Committee property may become abandoned or unclaimed property. (fn3) After the attorney determines that the client cannot be Opinion No. 97-01 located, an attorney should, therefore, hold trust accounts Approved January 24, 1997 unclaimed by a client for the time period set forth in the statute. This Committee is not authorized to decide or Issue: What is the ethical obligation of an attorney to a interpret matters of law; (fn4) thus, a further interpretation client or former client, when the attorney is unable to locate of the abandoned property statutes is not proper here. the client, and the attorney is holding trust funds on behalf of that client? Once the property has become abandoned and is, therefore, unclaimed property within the meaning of the Utah Code, Opinion: The first obligation of an attorney under these the attorney should follow the procedure for reporting and circumstances is to secure the funds on behalf of the client submitting abandoned or unclaimed property set forth. (fn5) (fn1) as against all other possible claimants. In other words, Again, the exact procedure in following this statutory if the funds are still held in the form of a check, the attorney provision is a matter of interpretation of law, which cannot should take care to endorse the check and deposit it into the be undertaken in this opinion. attorney's trust account to insure that the funds are not eventually lost to the client simply by the passage of time or This opinion overrules Utah Ethics Advisory Opinion No. the expiration of the client's right to negotiate the 43, issued on March 3, 1978. instrument. Footnotes Thereafter, the attorney should keep the client's property in

1. References to "client" include a person who might be
   safe keeping, in conformity with the requirements of Rule
   considered a former client.
   1.15 of the Utah Rules of Professional Conduct.
   Specifically, the attorney should keep the funds in a trust
2. See Utah Rules of Professional Conduct 1.15 cmt.,
   account for the client. If the sum is substantial, or if the
   which discusses the analogous situation where an attorney
   period of time during which the lawyer will be unable to
   "is not required to remit [to the client] the portion [of funds
   locate the client is expected to be lengthy, the funds should
   from a third party] from which the lawyer's fee will be
   be placed in an interest-bearing account. A separate trust
   paid."
   account may be warranted when administering these
   monies.
3. Utah Code Ann. §§ 67-4a-201 to -214 (1996).
   After securing the funds for the client, the attorney should
4. Ethics Advisory Op. Comm. R. Proc. § III(b)(3).
   make all reasonable, diligent efforts to locate the client.
   This includes contacting all last known addresses and 5. Utah Code Ann. §§ 67-4a-301 to -303 (1996). telephone numbers, asking for forwarding addresses, and contacting third parties who are relatives, employees or Rule Cited: friends of the client to attempt to reach the client. Under certain circumstances, it may even be appropriate for the 1.15 attorney to seek the professional help of an investigator to locate the missing person. A rule of reasonableness should apply. Clearly, expending all of the money held in trust to locate the client is not warranted and violates the rule of safely keeping a client's property. However, for large sums, spending a substantial sum of money to locate the client in order to transfer the remaining balance may be appropriate.