Can a closing lawyer disburse from the trust account against deposited checks that have only been provisionally credited, before they actually clear?

Plain-English summary

The opinion responded to the failure of an out-of-state mortgage lender whose loan-proceeds checks were deposited and disbursed against by closing lawyers, then dishonored and charged back, so that other clients' trust funds were used to cover the closing checks. The State Bar reexamined its prior opinions CPR 358 and RPC 86, which had allowed disbursing against provisionally credited but uncollected funds. The question was whether a closing lawyer may deposit a lender's, agent's, or buyer's check and immediately disburse against it once the bank extends provisional credit, before collection.

The opinion concluded the lawyer may do so, but only on stated conditions. A lawyer may disburse from a trust account only in reliance on the deposit of a financial instrument specified in the Good Funds Settlement Act, G.S. Chapter 45A (effective October 1, 1996), together with provisional credit, and has an affirmative duty, on learning a deposited item was dishonored, to immediately protect other clients' funds by personally paying the failed amount or arranging payment from sources other than other clients' trust funds. Disbursing in reliance on an item not specified in the Act is professional misconduct regardless of whether the item ultimately clears. The opinion grounded the analysis in the lawyer's fiduciary duty under Rule 10.1 to safeguard and segregate client funds and under Rule 10.2 to keep complete records and promptly pay clients. It explained that a strict reading of those rules would forbid disbursing before items are irrevocably credited, but that for instruments the Act treats as carrying so slight a risk of noncollectibility, immediate disbursement against provisional credit is not unethical, citing Virginia State Bar LEO 183 and Florida Rule 5-1.1(g) as comparable approaches. Even so, a lawyer should never disburse against provisionally credited funds unless reasonably believing the underlying item is virtually certain to be honored, and should not disburse against uncollected funds where the lawyer's own assets or credit could not fund the checks if the item is dishonored. CPR 358 and RPC 86 were overruled to the extent inconsistent, though parts remain operative, and the opinion applies to any disbursement against items not irrevocably credited on deposit, whether for a real estate closing or another transaction.

Currency note

This opinion was issued in 1995 (and revised in 1997), before the North Carolina State Bar's adoption of the 2003 revisions to the Rules of Professional Conduct. 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: Can a North Carolina closing lawyer disburse trust funds before the deposited checks clear?

A: Only against Good Funds Act instruments. The opinion concluded a lawyer may disburse on provisional credit only when the deposited item is one of the forms specified in the Good Funds Settlement Act, G.S. Chapter 45A.

Q: What happens if a deposited item is dishonored?

A: The lawyer has an affirmative duty to act immediately. The opinion required the lawyer to personally pay the failed amount or arrange payment from sources other than other clients' trust funds, so other clients' money is not used to cover the shortfall.

Q: Is disbursing against a non-specified instrument ever acceptable if it clears?

A: No. The opinion concluded that disbursing in reliance on an item not specified in the Act is professional misconduct regardless of whether the item is ultimately honored or dishonored.

Q: Does this apply only to real estate closings?

A: No. The opinion stated it applies to any disbursement against items not irrevocably credited on deposit, whether for a real estate closing or another transaction.

Background and rules framework

The opinion applied North Carolina's then-current Rule 10.1 and Rule 10.2 (including Rule 10.2(e)), the trust-account safekeeping and records provisions corresponding to Model Rule 1.15, which impose a fiduciary duty to segregate client funds, keep complete records, and promptly pay clients. It read those duties together with the Good Funds Settlement Act, G.S. Chapter 45A, which lists the instruments a settlement agent may disburse against on provisional credit, and partially overruled the earlier opinions CPR 358 and RPC 86.

Citations and references

Rules of Professional Conduct:

• MR 1.15 (safekeeping property; trust accounts and records)
• North Carolina Rule 10.1, Rule 10.2, Rule 10.2(e)

Statutes:

• N.C. Gen. Stat. Chapter 45A, Good Funds Settlement Act (notably G.S. 45A-4)

Other authorities:

• Virginia State Bar Legal Ethics Opinion 183
• Rule 5-1.1(g), Rules Regulating the Florida Bar

Other opinions cited:

• CPR 358 and RPC 86 (prior disbursement opinions; overruled to the extent inconsistent)

See also

• NC Ethics Op. RPC 232: disbursement on a mortgage check and good funds
• NC Ethics Op. RPC 210: multiple parties to a residential real estate closing
• NC Ethics Op. RPC 247: payment of fees by electronic transfer

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-191/

Original opinion text

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

Revised January 24, 1997

Editor's Note: RPC 191 originally became a formal opinion of the State Bar on October 20, 1995. The opinion sets forth the duty of a closing lawyer to disburse from the trust account only in reliance upon the deposit of specified negotiable instruments which have a low risk of noncollectibility. On June 21, 1996, the North Carolina General Assembly ratified the Good Funds Settlement Act, G.S. Chapter 45A, which became effective October 1, 1996. The act sets forth the duty of a settlement agent for a residential real estate closing to disburse settlement proceeds from a trust or escrow account only in reliance upon the deposit of specified negotiable instruments. There was some inconsistency between the list of negotiable instruments against which disbursement was permitted in the Act and a similar list in RPC 191. To correct this, RPC 191 was revised to reference the list of acceptable negotiable instruments found in the Act.

Introduction:

In the wake of the financial failure of an out-of-state mortgage lender, the State Bar received numerous requests to reexamine prior ethics opinions CPR 358 and RPC 86 which permitted a lawyer to issue trust account checks against funds which, although uncollected, were provisionally credited to the lawyer's trust account by the financial institution with which the trust account was maintained. RPC 86 cautioned that the closing lawyer should disburse against provisionally credited funds only when the lawyer reasonably believed that the underlying deposited instrument was virtually certain to be honored when presented for collection. Nevertheless, lawyers did accept, deposit, and disburse against the residential loan proceeds checks of the out-of-state mortgage lender that failed. Some of these checks were ultimately dishonored and charged back against the trust accounts of the closing lawyers. In the meantime, some trust account checks issued for the closings were presented for collection and paid, resulting in the use of funds deposited by other clients to pay the closing checks presented for payment.

Inquiry:

In the typical residential real estate closing, the lending institution that finances the purchase of the property delivers the loan proceeds to the closing lawyer in the form of a check drawn upon a financial institution which may or may not be located in North Carolina. Loan proceeds are seldom delivered to the closing lawyer in the form of wired funds. Similarly, the real estate agent sometimes delivers the earnest money to the closing lawyer in the form of a check drawn on his or her trust account and the buyer sometimes delivers a personal check to the closing lawyer to cover the difference between the loan amount and the buyer's obligations. May a closing lawyer deposit such checks in his or her trust account and, if the depository bank will provisionally credit the lawyer's trust account, immediately disburse against the items before they have been collected?

Opinion:

Yes, but only upon the conditions set forth in this opinion.

A lawyer (1) may disburse funds from a trust account only in reliance upon the deposit of a financial instrument specified in the Good Funds Settlement Act, G.S. Chap. 45A (the Act), which became effective on October 1, 1996, and the securing of provisional credit for the deposited item, and (2) as an affirmative duty, must immediately act to protect the property of the lawyer's other clients by personally paying the amount of any failed deposit or securing or arranging payment from other sources upon learning that a deposited instrument has been dishonored. It shall be unethical for a lawyer to disburse funds from a trust account in reliance upon the deposit of a financial instrument that is not specified in the Act, regardless of whether the item is ultimately honored or dishonored.

In reliance on CPR 358 and RPC 86, many closing lawyers deposit the checks from the lender, the real estate agent, and the buyer into their trust accounts, receive provisional credit for the items from the depository bank and immediately disburse funds from their trust accounts in accordance with the schedule of receipts and disbursements prepared for the closing. There is typically some delay, generally three to four days but in some instances as much as fifteen days, between the time of the deposit of the checks of the lender, the buyer, and the real estate agent into the lawyer's trust account and the time when the funds are irrevocably credited to the lawyer's trust account by the depository institution. Because of the time lag between the deposit and the collection of the checks, the closing lawyer runs the risk that a check may be ultimately dishonored and charged back against the trust account of the closing lawyer, resulting in the use of the funds of other clients on deposit in the trust account to satisfy the disbursement checks from the closing.

A lawyer who receives funds that belong to a client assumes the responsibilities of a fiduciary to safeguard those funds and to preserve the identity of the funds by depositing the funds into a designated trust account. Rule 10.1 of the Rules of Professional Conduct. It is a lawyer's fiduciary obligation to ensure that the funds of a particular client are used only to satisfy the obligations of that client and are not used to satisfy the claims of the lawyer's creditors. Rule 10.1 and comment. Furthermore, Rule 10.2 of the Rules of Professional Conduct requires a lawyer to maintain complete records of all funds or other property of a client received by the lawyer and to render to the client appropriate accountings of the receipt and disbursement of any of the client's funds or property held by the lawyer. Rule 10.2(e) recognizes a lawyer's obligation to pay promptly or deliver to the client, or to a third person as directed by the client, the funds in the possession of the lawyer to which the client is entitled. Strictly interpreted, these rules would appear to require a lawyer not to disburse upon items deposited in his or her trust account until the depository bank has irrevocably credited the items to the account.

Requiring a closing lawyer to postpone disbursement until all items have been credited to the lawyer's trust account would result in inconvenience, delay, and could have an adverse effect on the economy. Nevertheless, there is some risk that certain instruments, such as ordinary commercial checks, may be uncollectible in any given transaction. Conversely, there are financial instruments that are generally regarded as extremely reliable. In fact, other state bars that have considered the issue have held that there are certain financial instruments for which the risk of noncollectibility is so slight as to make it unnecessary to prohibit a closing lawyer from disbursing immediately against such items before they are collected. See Virginia State Bar Legal Ethics Opinion 183 and Rule 5-1.1(g) of the Rules Regulating the Florida Bar. Similarly, the North Carolina Good Funds Settlement Act permits a "settlement agent," or person responsible for conducting the settlement and disbursement of the proceeds for a residential real estate closing, to disburse against uncollected funds but only if the deposited instrument is in one of the forms specified in the Act.

Notwithstanding the fact that some of the forms of funds designated in the Act are not irrevocably credited to the lawyer's trust account at the time of deposit, the risk of noncollectibility is so slight that a lawyer's disbursement of funds from a trust account in reliance upon the deposit into the account of provisionally credited funds in these forms shall not be considered unethical. However, a closing lawyer should never disburse against any provisionally credited funds unless he or she reasonably believes that the underlying deposited instrument is virtually certain to be honored when presented for collection. A lawyer may immediately disburse against collected funds, such as cash or wired funds, and may immediately make disbursements from his or her trust account in reliance upon provisional credit extended by the depository institution for funds deposited into the trust account in one or more of the forms set forth in G.S. §45A-4.

The disbursement of funds from a trust account by a lawyer in reliance upon provisional credit extended upon the deposit of an item into the trust account which does not take one of the forms prescribed in the Act constitutes professional misconduct, regardless of whether the item is ultimately honored or dishonored. However, a lawyer who disburses in reliance upon provisional credit extended upon the deposit of an item prescribed in the Act shall not be guilty of professional misconduct if that lawyer, upon learning that the item has been dishonored, immediately acts to protect the property of the lawyer's other clients by personally paying the amount of any failed deposit or securing or arranging payment from sources available to the lawyer other than trust account funds of other clients. An attorney should take care not to disburse against uncollected funds in situations where the attorney's assets or credit would be insufficient to fund the trust account checks in the event that a provisionally credited item is dishonored.

To the extent that CPR 358 and RPC 86 are inconsistent with this opinion, they are overruled. However, there are provisions in both opinions that remain operative. Specifically, the provision of CPR 358 that prohibits a lawyer from disbursing against the " in the trust account during the time lag between the deposit of the checks of the lender, the buyer, and the real estate agent and the time when these items are irrevocably credited to the account unless provisional credit for the items is extended by the depository institution remains in effect. If provisional credit is not extended by the depository institution, the disbursing lawyer is using the funds of other clients to cover the closing disbursements until the deposited items are collected in violation of Rule 10.1.

It should be emphasized that this opinion shall apply to any disbursements from the trust account against items which are not irrevocably credited to the account upon deposit, whether such disbursements are for the purpose of closing a real estate transaction or for the purpose of concluding some other transaction or matter.