A secretary or nonlawyer employee cannot sign an escrow account check.

Can I have my secretary or nonlawyer be a signer on a check from my escrow account and my operating account?

Samuel C. Stretton.

The answer for the escrow/IOLTA account is no. The answer for the attorney account is the better practice is not to.  Lawyers like to have stamps with their signature, which they then give to their secretary or paralegal to use, so checks can be written and paid. This is a very dangerous practice.

This writer has represented a number of lawyers over the years where valued, trusted, and long-employed secretaries or assistants used a signature stamp to misuse funds or steal funds from the lawyer.

Further, if a lawyer is using a signature stamp and allowing the secretary to do so, oftentimes the lawyer does not look at the account or look at the bank statements. It's important that every lawyer be aware of their escrow/IOLTA account and also their operating account and review the statements regularly.

Rule 1.15 of the Rules of Professional Conduct is the rule involving the escrow/IOLTA account requirements. When one reads that rule, there is no direct statement that a lawyer should not allow a secretary or nonlawyer to have the signing power on the account. This is an account where the lawyer has a fiduciary duty to their clients to hold clients' funds. These funds could be unpaid fees, they could be monies from a settlement or resolution. Because of their fiduciary duty in overseeing the IOLTA/escrow account, the lawyer should not delegate this duty to a nonlawyer.

It is the lawyer's duty and responsibility to safeguard those funds. To allow a nonlawyer, such as a secretary, to have the right to write funds on that account because they have access to a signature stamp would be wrong. The lawyer would not be fulfilling their ethical duties to their clients.

For an operating account, it's different.  That's the lawyer's money.  If the lawyer wants to allow someone else to be able to sign the checks without their knowledge using the signature stamp, then that's the lawyer's choice.  They can do what they want with their own money. But it could be a very foolish decision if the trusted employee steals the funds.

As I have said in many articles, the Supreme Court takes very seriously how escrow/IOLTA accounts are handled. There are specific record-keeping requirements now set forth in Rule of Professional Conduct 1.15(c). In that rule, lawyers have to maintain for 5 years complete records of the receipts and disposition of funds. They also have to maintain the fee agreements. They also have to maintain the books and records for each trust account. All records provided by the bank for the escrow account have to be maintained during that five-year period. The lawyer has to have a separately maintained ledger for the IOLTA account setting forth dates and times of withdrawals, names, etc. There also has to be maintained an individual ledger for each trust client showing the amount, source of income and monies withdrawn. The ledger sheet must have a current running balance. The account has to be regularly reconciled. Ledger sheets in the IOLTA account have to be regularly reconciled. These records of reconciliation have to be preserved for five years. When the lawyer receives funds in the escrow account, the client has to be properly notified of the receipt of these funds. There has to be prompt distribution of the funds. All these requirements are set forth in Rule 1.15(c)(1)(2)(3)(4)(5) and (d). Also, Pennsylvania Rules of Disciplinary Enforcement, Rule 221 reiterates these record-keeping requirements.

These rules at times seem burdensome and can become expensive at times, particularly the monthly reconciliations. But the Pennsylvania Supreme Court wants all accounts records available. In days past, if there were questions about an account, the Office of Disciplinary Counsel would write the lawyer and if the lawyer didn't have the records, this delayed prosecution. The court became upset with the inability of lawyers to produce records so now the court has these mandatory requirements. Failure to fulfill these mandatory requirements or produce requested records can result in a suspension of a number of months or even longer.

To go back to the question, obviously allowing nonlawyers or secretaries to have the signature stamp so the escrow funds can be accessed is not only foolish, but it would appear to be prohibited because of the lawyer's duty to maintain and protect those funds. There is no such thing as a trusted secretary or paralegal any longer. As much as one would like to think so, unfortunately, there has been too many times where long-term trusted employees, for whatever reason, whether it's drugs, alcohol, gambling, family problems, etc., have violated the trust of the lawyer. Therefore, to allow fiduciary funds to be accessed by nonlawyers with a stamp is wrong and should not be allowed and could create serious ethical issues for the lawyer down the line.

A lawyer should get his client's permission to seek additional advice.

I am a young attorney and I wish to consult with a more experienced attorney and discuss my client's issues and problems to make sure I am providing adequate representation. Can I do so without violating confidentiality and I don't want my client to know I am consulting with anyone else?

The question is an interesting one. Normally, lawyers get permission from their client to discus the case with someone else in confidence. If one discusses a case with another lawyer, the lawyer should make sure that the discussion is within an attorney-client privilege between the two lawyers. But does the client have to know or consent to the conversation?

Rule 1.6, the confidentiality rule, has been amended to allow a lawyer to speak to another lawyer by securing legal advice.  Rule 1.6(c)(5) now states as follows: "A lawyer may reveal such information to the extent that the lawyer reasonably believes necessary to secure legal advice about the lawyer's compliance with these rules."

Comment 16 to Rule 1.6 talks about the exception to the confidentiality rule: "In most situations, disclosing information to secure such advice will be impliedly authorized for the lawyer to carry out the representation. Even when the disclosure is not impliedly authorized, Paragraph (c)(5) permits such disclosure because of the importance of a lawyer's compliance with the Rules of Professional Conduct." .

Therefore, the rule recognizes the timely need for a lawyer to get advice to fulfill their ethical responsibilities and duties to a client. Rule 1.6(c)(5), though, is not a mandatory. It is an optional or discretionary rule. A lawyer may do that.

But if a lawyer does seek advice from another lawyer, the lawyer should make sure that the conversation is confidential and under the attorney-client privilege between the inquiring lawyer, and the lawyer whose advice is being sought.

Although Rule 1.6(c)(5) does not require or state the client's consent must be given, Rule of Professional Conduct 1.4 involving communication with a client seems to suggest the client should be consulted. Under Rule 1.4(a), the lawyer is required to consult with the client about all the means to accomplish the objectives of the representation, keep the client reasonably informed, consult with the client about the relevant limitations on the lawyer's conduct and explain matters to the client so the client can make informed decisions. Consulting another lawyer because the lawyer needs advice would seem to be an area that ought to fall under Rule 1.4, so the client should at least be advised.  If the client objects and tells the lawyer not to, a wise lawyer would probably comply with that request.

The Rules of Professional Conduct sometimes can be confusing and difficult. But there is a certain logic to it and that logic all centers around protecting the client's interest and rights. That protection begins with the strong rule of confidentiality set forth in Rule 1.6 and the attorney-client privilege. It also focuses around protecting a client with no conflicts of interest, protecting a client by fully advising the client of what is going on and protecting the client in terms of safeguarding funds. That's the essence of the ethical duties of an attorney. Therefore, a lawyer always should carefully think about what they should tell a client and getting a client's permission to seek additional advice. Sometimes lawyers tend to think they know best and proceed without the client's permission or consent. A wise lawyer might reconsider that practice.

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pennsylvania, 19381.