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Ethics


medical provider, and the funds belonging to the client and third persons clearly were not (a) safeguarded in a trust account or (b) delivered promptly to the parties entitled to receive the funds. Apart from its reinforcement of a proposition undoubtedly


well known and understood by every reader of this article, namely, that intentional misappropriation of funds held for others will get you disbarred, the Roberts case serves to highlight several important imperatives when concluding a personal injury case.


Going back to Rule 1.5(c), which


governs contingent fee representation, that rule requires, upon conclusion of a contingent fee matter, that a lawyer “shall provide the client with a written statement stating the outcome of the matter, and, if there is a recovery, showing the remittance to the client and the method of its determination.” As Roberts demonstrates, merely generating that written statement, without making the distributions represented therein, will not go very far toward avoiding a grievance. Another point of emphasis is that a written settlement


distribution statement generated upon conclusion of a contingent fee matter is not the same thing as, nor is it an acceptable substitute for, the client matter record an attorney is required to create and maintain for each client matter in


which the attorney receives funds in trust. With the adoption of Rule 16-606.1, which took effect January 1, 2008, the Court of Appeals imposed very specific requirements for the creation of records relating to the receipt and disbursement of funds of clients or third persons held in trust. Within the Rules of Professional Conduct, Rule 1.15(a) requires trust records to be created and maintained in accordance with the Rules in Title 16, Chapter 600. (Also note that Rule 1.15(a) requires preservation of account records for a period of at least five years after the date the record was created.) Rule 16-606.1 should be reviewed in full to ensure overall compliance, but with regard to individual client matters, subsection (a)(3)(A) requires, for each trust account transaction, creation of “a record that shows (i) the date of the deposit or disbursement; (ii) the amount of the deposit or disbursement; (iii) the purpose for which the funds are intended; (iv) for a disbursement, the payee and the check number or other payment identification; and (v) the balance of funds remaining in the account in connection with the matter.” In handling personal injury funds, the ultimate objective, of course, should be to have the disbursement side of the ledger result in a zero balance as promptly as possible. In some instances, disputes will arise that do not permit the distribution process to be concluded quite so promptly. Often


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18 Trial Reporter / Winter 2012


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