Opinion 2143

I. Facts

The inquirer is the sole owner and employer of a professional services corporation in which there are other lawyers and 8 para-professional employees. He observes that he has a skilled and trusted non-lawyer employee write checks, monitor the trust account, make regular reports to the managing partner/owner and make certain that appropriate disbursements are made in a timely manner to insure compliance with the professional responsibility obligations of the firm.

The inquirer notes that his firm’s elder law, probate, guardianship and litigation clients with deposited trust funds “often find themselves in need of disbursements within a day or sometimes hours in order to meet their needs at times when all the lawyers are out of the office or otherwise engaged.” He believes that, “[i]f disbursements cannot be made when required, dire consequences, both legal and otherwise, will occur.”

The inquirer advises that he has a signature stamp which can be used to stamp his facsimile signature on both business and trust account checks. His bank has a copy of the facsimile signature on file. In the past, he has authorized his Officer Administrator and his Financial Administrator to sign or stamp his facsimile signature on trust account checks.

II. Questions Presented

1. Does RPC 1.15A(h)(9) mean that only a lawyer’s signature may appear on trust account checks?

2. May a lawyer authorize a staff member to affix the lawyer’s signature by stamping a facsimile thereof on the check?

3. In the alternative, may a lawyer give a limited power of attorney to an employee to allow signature of trust account checks as attorney-in-fact for the lawyer?

III. Analysis

1. The language of RPC 1.15A(h)(9) is clear: “Only a lawyer admitted to practice law may be an authorized signatory on the account.” If the Rule or the Comment meant to approve nonlawyer signators, they could easily have done so.

2. Neither the RPC 1.15A nor the Comments specifically address the use of a signature stamp or a limited power of attorney for issuance of trust account checks. The history of this provision does provide some guidance, however. RPC 1.15A(h)(9) was originally proposed by the WSBA “Ethics 2003” Committee. The Final Report of the Ethics 2003 Trusts Accounts Subcommittee (the “Subcommittee Final Report”) includes “legislative history” that is illuminating:

(c) Only a lawyer may be an authorized signatory on a trust account

“MRFR B(1) only permits a lawyer admitted to practice law in this jurisdiction to be an authorized signatory on a trust account. The subcommittee relaxed this requirement slightly by permitting any lawyer admitted to practice to be an authorized signatory on the account. Those in other states that have this restriction report that it protects lawyers from theft from the trust account by nonlawyers in their employ. The subcommittee believes that a lawyer could still authorize a nonlawyer assistant to sign the lawyer’s name on specific trust account checks or use a signature stamp, but if the nonlawyer did so without the lawyer’s authorization, the bank would be liable for the nonlawyer’s theft of client funds.” [Emphasis added.]

In 1988, this Committee offered a similar interpretation of former RPC 1.14 which was the prior Rule on safeguarding client funds (though it did not have a specific provision regarding the signatory on a trust fund):

The Committee was of the opinion that authorizing a member of your staff to use a signature stamp for signature on trust account checks, with your knowledge and direction, would not be specifically prohibited by the Rules of Professional Conduct, but that such a practice is very poor and might be so below the minimal standard of care so as to border on incompetence. The Committee felt that the potential for misuse of a signature stamp on trust account checks was great, and likened it to a lawyer signing trust account checks in blank and leaving them lying around.

Informal Opinion 1157.

The purpose of RPC 1.15A(h)(9) is to ensure that a lawyer rather than a nonlawyer controls access to trust funds. Accordingly, a lawyer may not give a nonlawyer discretion with respect to trust fund disbursements. The Committee is of the opinion that under this Rule, a lawyer may still use a facsimile stamp of his/her signature on a trust account check, provided that the facsimile image is on file with the bank where the trust account is held. A lawyer may not, however, give a staff member blanket authorization to issue a check and put the lawyer’s facsimile signature on it. When a specific request for a check arises, a lawyer may, after familiarizing him/herself with the facts and making a decision to issue the check, authorize a staff member to issue the check and put the lawyer’s facsimile signature on it. However, the lawyer must understand that he/she will be personally responsible, both financially and for any violation of the RPCs, if a nonlawyer makes an unauthorized withdrawal of funds from a trust account. A lawyer who chooses to use a signature stamp should maintain a written record of the authorization for such disbursements and should take steps to ensure that the stamp itself is kept secure.

3. The Committee is of the opinion that the Rule does not permit a lawyer to grant a nonlawyer discretion over disbursements from the trust account by means of a limited power of attorney. A lawyer may use a limited power of attorney to delegate to a nonlawyer the purely ministerial function of signing or stamping the lawyer’s signature on a trust account check (provided that the lawyer first authorizes the issuance of the specific check), but the lawyer cannot delegate decision-making authority regarding disbursements from the trust account.