Opinion 2210

This opinion addresses the payment of filing fees using an electronic debit card issued with the lawyer’s trust account.

Question: A court requires that filing fees be paid electronically. The client pays the lawyer the amount of the filing fee, which the lawyer deposits into her IOLTA account. May the lawyer pay the filing fee from the trust account using a debit card?

Answer: Yes, PROVIDED that the lawyer does not withdraw funds from the IOLTA account as cash using the debit card, takes appropriate precautions to safeguard the card to prevent misuse, ensures that the client has sufficient funds to pay the amount charged, and maintains records of all debit card transactions in accordance with RPC 1.15B.

Analysis: Lawyers may withdraw funds from a trust account only by check or bank transfer, and all withdrawals must be made to a named payee. RPC 1.15A(h)(5). The Rules do not define “bank transfer.”

As a technical matter when a debit card is used to pay a filing fee, funds are transferred from the bank account associated with the debit card (here, the lawyer’s trust account) to the bank account for the recipient of the filing fee, such as the court. Use of a debit card to pay a filing fee directly is therefore a bank transfer under RPC 1.15A(h)(5).

On the other hand, RPC 1.15A(h)(5) prohibits use of the debit card to withdraw funds from an ATM as cash. These transactions do not include a named payee. They also cannot be documented for record keeping purposes pursuant to RPC 1.15B. Because such a withdrawal is not a bank transfer, it is not permitted under RPC 1.15A(h)(5).

Lawyers who obtain debit cards for their trust accounts should adequately safeguard the card and its PIN (personal identification number) to prevent cash withdrawals. Because a lawyer must keep records of debit card transactions as required by RPC 1.15B, ordinarily the card would only be used in the lawyer’s office. Before using a debit card, the lawyer must confirm that the client has sufficient funds in the trust account to pay the full amount that will be charged. If the court charges a transaction fee, the lawyer must have sufficient funds for that client to pay the transaction fee as well as the filing fee. See RPC 1.15A(h)(8) (disbursements on behalf of a client may not exceed the funds of that person on deposit).

Advisory Opinions are provided for the education of the Bar and reflect the opinion of the Committee on Professional Ethics (CPE) or its predecessors. Advisory Opinions are provided pursuant to the authorization granted by the Board of Governors, but are not individually approved by the Board and do not reflect the official position of the Bar association. Laws other than the Washington State Rules of Professional Conduct may apply to the inquiry. The Committee's answer does not include or opine about any other applicable law other than the meaning of the Rules of Professional Conduct.