Can a lawyer use a facsimile signature stamp on trust-account checks, or let staff sign them?

Plain-English summary

The inquirer owns a professional services corporation with other lawyers and several non-lawyer staff. A trusted non-lawyer employee writes checks and monitors the trust account, and clients sometimes need disbursements within hours when all the lawyers are out. The inquirer has a facsimile signature stamp on file with the bank and asked three questions: whether RPC 1.15A(h)(9) means only a lawyer's signature may appear on trust-account checks, whether a lawyer may authorize a staff member to affix the lawyer's facsimile signature by stamp, and whether a lawyer may instead give an employee a limited power of attorney to sign trust checks as attorney-in-fact.

The committee read the rule's text as clear: "Only a lawyer admitted to practice law may be an authorized signatory on the account." Drawing on the WSBA Ethics 2003 Trust Accounts Subcommittee's final report and the committee's 1988 Informal Opinion 1157, it concluded that the rule's purpose is to ensure a lawyer, not a nonlawyer, controls access to trust funds, so a lawyer may not give a nonlawyer discretion over disbursements. A lawyer may still use a facsimile signature stamp, provided the image is on file with the bank, but may not give a staff member blanket authorization to issue a check and stamp the signature. When a specific request arises, the lawyer may, after learning the facts and deciding to issue the check, authorize a staff member to issue it and stamp the lawyer's facsimile signature. The committee added that the lawyer remains personally responsible, financially and under the RPCs, for any unauthorized withdrawal by a nonlawyer, and that a lawyer using a stamp should keep a written record of authorizations and keep the stamp secure.

On the third question, the committee concluded the rule does not permit delegating disbursement discretion to a nonlawyer through a limited power of attorney. A limited power of attorney may delegate the purely ministerial act of signing or stamping the lawyer's signature on a specific check the lawyer has already authorized, but not the decision-making authority over trust disbursements.

In practice

Under this opinion, and under RPC 1.15A(h)(9) as it stood at the time, only a lawyer may be an authorized signatory on a Washington trust account, and the lawyer must make the decision to issue each trust-account disbursement. The committee held that a facsimile signature stamp is permissible if it is on file with the bank, that a staff member may affix it to a specific check only after the lawyer reviews the facts and decides to issue that check, and that blanket authorization is not allowed. A limited power of attorney can cover only the ministerial signing of a check the lawyer has already authorized, not the underlying decision. The committee framed the lawyer's exposure plainly: personal financial and disciplinary responsibility for an unauthorized nonlawyer withdrawal, with a written authorization record and a secure stamp identified as the committee's expectations for a lawyer who uses one.

Common questions

Q: Can only a lawyer be an authorized signatory on a Washington trust account?

A: Yes. The committee said RPC 1.15A(h)(9) is clear that "[o]nly a lawyer admitted to practice law may be an authorized signatory on the account."

Q: Can a lawyer use a facsimile signature stamp on trust-account checks?

A: Yes, provided the facsimile image is on file with the bank. The lawyer may authorize a staff member to affix it to a specific check after the lawyer reviews the facts and decides to issue that check, but the committee said the lawyer may not give blanket authorization.

Q: Can a lawyer delegate trust-check signing through a limited power of attorney?

A: Only the purely ministerial act of signing or stamping the lawyer's signature on a check the lawyer has already authorized. The committee said the rule does not permit delegating decision-making authority over disbursements to a nonlawyer.

Q: Who is responsible if a nonlawyer makes an unauthorized trust withdrawal?

A: The lawyer. The committee said the lawyer is personally responsible, both financially and for any RPC violation, and that a lawyer using a signature stamp should keep a written record of the authorizations and keep the stamp secure.

Background and rules framework

The opinion interprets Washington RPC 1.15A(h)(9) (safekeeping of property; the counterpart to Model Rule 1.15), which provides that only a lawyer admitted to practice law may be an authorized signatory on a trust account. The committee identified the rule's purpose as ensuring that a lawyer, not a nonlawyer, controls access to trust funds, and looked to the WSBA Ethics 2003 Trust Accounts Subcommittee's final report (legislative history of the provision) and to the committee's 1988 Informal Opinion 1157 for guidance on the use of signature stamps.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.15 / Washington RPC 1.15A(h)(9) (safekeeping of property; only a lawyer may be an authorized signatory on a trust account)

Other opinions cited:

• WSBA Informal Opinion 1157 (1988): authorizing staff to use a signature stamp on trust-account checks is not specifically prohibited but is poor practice that may border on incompetence

See also

• WA Ethics Op. 1157: Nonlawyer Signature Stamp on Trust-Account Checks
• WA Ethics Op. 912: Nonlawyer Employee Trust Misappropriation and Reporting
• WA Ethics Op. 2018: Supervision of Nonlawyer Staff

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1583

Original opinion text

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

Advisory Opinion: 2143
Year Issued: 2007
RPC(s): RPC 1.15A(h)(9)
Subject: Use of a facsimile signature stamp for signature of trust account checks under RPC 1.15A(h)(9)

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.