Can a lawyer take unpaid fees out of trust funds received for a client whose whereabouts are unknown?

Plain-English summary

The inquiring lawyer had received a check issued on behalf of a client whose whereabouts were unknown. The lawyer had outstanding fees and costs, unpaid, that exceeded the amount of the check.

The committee was of the opinion that before the lawyer could disburse any client funds to himself, he would have to either obtain consent from the client as provided in RPC 1.14, or assert and enforce a lien pursuant to statute. The size of the unpaid fees relative to the funds did not change that requirement.

Currency note

This opinion was issued in 1988, before the 2006 revisions to the Washington Rules of Professional Conduct. The rule then numbered RPC 1.14, governing safekeeping of client property and trust accounts, corresponds to Model Rule 1.15 and was later renumbered and amended. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

Common questions

Q: Can a lawyer just keep funds held for a missing client to cover unpaid fees?

A: Per the opinion, no, not without authority. The committee was of the opinion that the lawyer would first need the client's consent under RPC 1.14 or a statutory lien before disbursing any client funds to himself.

Q: Does it matter that the fees owed exceed the amount of the check?

A: No. The committee required either client consent or a statutory lien regardless, even though the outstanding fees and costs exceeded the amount of the check.

Q: What are the two routes the committee identified for taking the funds?

A: Consent from the client as provided in RPC 1.14, or asserting and enforcing a lien pursuant to statute.

Background and rules framework

The opinion applies the rule then numbered Washington RPC 1.14, corresponding to Model Rule 1.15, which governs the safekeeping of client property and funds. The committee treated funds received for a missing client as the client's property that the lawyer could not take for his own fees without either the client's consent under the rule or a statutory lien.

Citations and references

Rules of Professional Conduct:

• Washington RPC 1.14 (safekeeping of client property; trust accounts), corresponding to Model Rule 1.15.

Statutes:

• A statutory attorney's lien (referenced generally by the committee as the alternative to client consent; no section number given in the text).

See also

• WSBA Ethics Op. 1128: handling trust funds held for a client whose whereabouts are unknown
• WSBA Ethics Op. 1066: whether a client can waive the qualified-trust-account requirement
• WSBA Ethics Op. 1157: authorizing a nonlawyer to use a signature stamp on trust-account checks

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=246

Original opinion text

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

Advisory Opinion: 1166
Year Issued: 1988
RPC(s): RPC 1.14
Subject: Trust account; receipt of funds on behalf of missing client who owes fees in excess of funds received

The Committee reviewed your inquiry regarding your receipt of a check issued on behalf of your client whose whereabouts are presently unknown to you. The Committee understood that you have outstanding fees and costs which have not been paid which exceed the amount of the check. The Committee was of the opinion that before you could disburse any client funds to yourself, you would either have to have consent from the client as provided in RPC 1.14, or assert and enforce a lien pursuant to statute.