10-01 In order to determine whether an attorney may pay his fees from funds held in his Trust Account, a determination must first be made as to who is legally entitled to the funds. With client consent, an attorney may withhold his or her fees due from client funds in the attorney’s possession. An attorney may not withhold fees from funds in the attorney's possession if those funds are the property of someone other than the attorney's client and that party does not consent.
07-03 A lawyer who is advised of a client’s execution of an agreement with a medical provider that directs the lawyer to pay for the provider’s services from the proceeds of a claim for personal injuries on which the lawyer is representing the client, is not required to formally acknowledge the agreement and may not sign it unless the client so directs.
Upon receipt of the settlement funds, the lawyer should (1) deposit the funds in a client trust account; (2) notify the client; (3) advise the client that the lawyer appears to have a duty to notify the provider and that the agreement signed by the client includes a direction to the lawyer to pay any balance due to the provider prior to distributing funds to the client.
Unless the client directs, the lawyer is not required to notify the medical provider of the receipt of the settlement funds. However, the funds should be kept separate until there is an accounting and severance of the respective interests of the client, provider and the lawyer. No funds may be disbursed until there is a resolution of any dispute concerning the amounts due to the respective parties.
06-04 All funds provided to an attorney in connection with a real estate closing must be maintained in a pooled interest bearing trust account unless the funds can reasonably be expected to generate substantial interest for a client. All trust accounts maintained by attorneys practicing in Vermont must be "overdraft notification accounts" as specified in Vermont Rules of Professional Conduct 1.15C.
05-04 An attorney may charge a flat fee or a minimum fee, so long as the basis for the fee is understood by the client and the fee is reasonable when measured by Rule 1.5(a). Any advance payment remains the property of the client until earned and must be deposited in the attorney’s trust account. If, however, the client knowingly agrees the fee is “earned upon receipt,” it becomes the property of the lawyer and cannot go into the trust account.
02-04 This Opinion addresses a series of inquiries about handling client trust funds.
98-09 This Opinion withdraws Opinion 96-10 issued by the Professional Responsibility Committee, which held that where the true owner of IOLTA trust account funds could not be identified, the requisite time period having passed, the prudent alternative was the transfer of the funds to the Vermont Bar Foundation, subject to repayment in the event the client later made claim to the funds.
98-05 Compliance with the appropriate Disciplinary Rules is satisfied when a lawyer or a law firm transmits a ledger sheet or similar notification at the end of each calendar month, reflecting receipts for disbursements involving the client’s trust account. Withdrawal from a client’s trust fund of earned fees is allowed unless the fee is disputed by the client. Withdrawal may occur at the time the invoice is sent to the client. Should the client then dispute the transfer, immediate re-deposit of the funds into the trust account is required. Finally, no advance notice need be given the client before a disbursement is made from his or her trust account unless the agreement between the parties requires such advance notice.
97-08 A lawyer must exercise discretion in determining the necessary length of time for the subsequent retention or disposition of a client’s file. The contents of certain files may indicate the need for a longer retention period than do the contents of files of similar age based on their relevance and materiality to situations which may foreseeably arise. Moreover, in disposing of a client’s files, a lawyer should protect the confidentiality of its contents.
If possible, notice may be given the client as to the date of disposition, affording the client the opportunity to take possession of all or part of the material in the file.
95-05 Upon the death of a client, a lawyer, upon request, is ethically bound to turn over the client’s papers and property only to the Executrix of the client’s estate, but to no other person.
91-03 (A) Upon request of the client an attorney may not refuse to deliver to the client the papers and property of the client, to which the client is entitled. (B) An attorney may not collect an excessive fee. (C) It is beyond the authority of this committee to answer questions of law related to the scope of the attorney's lien and enforceability of retainer agreements.