What does a Vermont lawyer do with an unearned retainer balance when the former client cannot be located?
Apply this to your situation
This page answers the general question as of 1987. Ask about yours and see what the current Vermont Rules of Professional Conduct say for your facts, with citations.
Plain-English summary
An out-of-state criminal-defense client paid a retainer. After completing the representation and taking earned fees and costs, the lawyer could not locate the client despite diligent attempts to return the balance. The remaining money was still in the client trust account.
The committee said former DR 2-110(A)(3) required prompt refund of unearned advance fees on withdrawal, and DR 9-102 required trust-account safekeeping, accounting, and delivery of client funds. Because no more services were expected, the excess remained the client's property. If it remained unclaimed seven years after it should have been refunded, the lawyer should follow Chapter 13 of Title 27, Vermont's unclaimed-property provisions.
Currency note
This opinion was issued in 1987 under Vermont's former Code of Professional Responsibility. The Vermont Supreme Court's rules history states that the Rules of Professional Conduct applied to lawyer conduct after September 1, 1999. Later amendments or opinions may have changed the analysis. Treat this opinion as historical context and verify current rules before relying on it.
Common questions
Q: Can the lawyer treat the unclaimed balance as the firm's money?
A: No. The committee said the excess remained client property and should stay in the trust account while unclaimed.
Q: What did the committee say to do after seven years?
A: It directed the lawyer to take the steps in Chapter 13 of Title 27 if the balance remained unclaimed seven years after it should have been refunded.
Background and rules framework
The opinion applied former DR 2-110(A)(3) on unearned advance fees and DR 9-102 on safeguarding and delivering client funds. It said the Code did not otherwise state an affirmative responsibility for an abandoned retainer and therefore looked to Vermont's unclaimed-property chapter.
Citations and references
Rules of Professional Conduct:
- Vermont Code of Professional Responsibility DR 2-110(A)(3) and DR 9-102
Statutes:
- Vermont Title 27, Chapter 13, concerning unclaimed property
See also
Source
- Landing page: Vermont Bar Association fees opinions
- Original PDF: Opinion 87-09
- Vermont Supreme Court rules history, “These rules apply to lawyer conduct after September 1, 1999.”
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