Can a lawyer withdraw earned hourly fees from the client trust account at the moment of sending the billing statement, before the client has time to review it?

Plain-English summary

The inquiring attorney described his practice under hourly fee agreements of withdrawing earned fees from the client trust account at the time he sends the client the billing statement. If a client later disputed a charge after receiving and reviewing the statement, he would return the disputed amount to the trust account until the dispute was resolved. He asked whether this practice complied with RPC 1.15A(h)(3).

The committee noted, as a matter of policy, that it does not comment on specific language. It explained that RPC 1.15A(h)(3) requires lawyers to give clients "reasonable notice" "through a billing statement or other document" of an intent to withdraw earned fees from a trust account before making the withdrawal. The committee concluded that, to comply with RPC 1.15A, the lawyer should not withdraw fees from the trust account until the client has had sufficient time to review the billing statement and contact the lawyer with concerns. The committee thus distinguished simultaneously sending the bill and withdrawing the funds from giving the reasonable notice the rule requires.

In practice

Under the Washington rules as they stood at the time of the opinion, the committee read RPC 1.15A(h)(3) to require reasonable advance notice before a lawyer withdraws earned fees from a trust account. The opinion holds that withdrawing at the same instant the billing statement is sent does not give the client the time the rule contemplates; the lawyer should wait until the client has had sufficient time to review the bill and raise concerns. The committee expressly declined to approve or rewrite any particular contract or billing language, framing its answer at the level of what the rule requires rather than how to draft around it.

Common questions

Q: Can a lawyer pull earned fees from the trust account the moment the bill is sent?

A: The committee indicated this does not satisfy the rule. RPC 1.15A(h)(3) requires reasonable notice before withdrawal, so the lawyer should wait until the client has had sufficient time to review the statement and raise concerns.

Q: What does "reasonable notice" mean under RPC 1.15A(h)(3)?

A: The committee described it as notice, through a billing statement or other document, of the intent to withdraw earned fees before the withdrawal is made, giving the client time to review and object.

Q: Did the committee approve the lawyer's specific billing practice or language?

A: No. The committee said that as a matter of policy it does not comment on specific language; it answered only what RPC 1.15A(h)(3) requires.

Background and rules framework

The opinion interpreted Washington RPC 1.15A(h)(3) (Model Rule 1.15, safekeeping property; the procedure for withdrawing earned fees from a trust account). The rule requires reasonable notice to the client, through a billing statement or other document, of the lawyer's intent to withdraw earned fees before the withdrawal is made.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.15 / Washington RPC 1.15A(h)(3) (reasonable notice before withdrawing earned fees from trust)

See also

• WA Ethics Op. 2176: keeping uncashed trust-account funds
• WA Ethics Op. 1029: trust funds held where the lawyer cannot obtain client instructions

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1622

Original opinion text

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

Advisory Opinion: 2177
Year Issued: 2008
RPC(s): RPC 1.15A (h)(3)
Subject: Withdrawing funds from client trust account upon billing client

I. QUESTION PRESENTED:

The inquiring attorney asks whether, with respect to hourly fee agreements, his practice of disbursing “funds from the clients trust account upon billing to the client for fees earned” is ethical under RPC 1.15A (h) (3). He states his practice is to withdraw the funds from his trust account at the time he sends his billing statement to the client. If a client disputes a charge after receipt and review of a billing statement, the attorney returns the disputed amounts to the trust account until the dispute is resolved.

II. BRIEF ANSWER:

The committee does not, as a matter of policy, comment on specific language. RPC 1.15A (h) (3), however, requires lawyers to give clients “reasonable notice” “through a billing statement or other document” of intent to withdraw earned fees from a trust account before making the withdrawal. To comply with RPC 1.15A, the lawyer should not withdraw fees from the trust account until his client has had sufficient time to review the billing statement and contact him with concerns.