IOLTA stands for “Interest on Lawyers’ Trust Accounts.” It is an integral part of the legal profession’s effort to support equal access to the justice system. Most Iowa lawyers use a “pooled” trust account, in which all of their clients’ funds are kept. Keeping track of the interest earned on the funds for each client would be a Herculean task, so instead the interest from the pooled account is sent to Iowa’s Lawyers Trust Account Commission on a monthly or quarterly basis. The interest which is remitted is combined with that from all other lawyers’ trust accounts in Iowa and distributed by the Iowa Supreme Court on an annual basis as part of the IOLTA grant process. Last year the Court distributed almost a quarter of a million dollars to tax-exempt law-related charitable and educational entities across the State of Iowa. Many of these entities provide legal services to low-income Iowans with civil legal problems. Since the inception of the program in Iowa back in 1985, Iowa’s lawyers and financial institutions have worked together to contribute more than $24,200,000 in funding.
Iowa’s Client Trust Account Rules are primarily located in Iowa Court Rules chapter 45 and Iowa Rule of Professional Conduct 32:1.15 regarding the Safekeeping Property.
If you accept or hold funds on behalf of another or for the benefit of another (e.g., funds of clients, including advances for costs or fees, or funds owed to clients or others that are paid to you) then you need to have a trust account. Government attorneys or corporate counsel generally do not need a trust account. Most private practitioners need a trust account.
Consider this issue each time client funds are received, and periodically thereafter. Generally, the choices are the IOLTA pooled account or a separate interest-bearing account for an individual client. Attorneys should consider the following factors:
- The amount of interest the funds will earn during the likely period of the deposit (balance, duration, rate, likelihood of delay in resolution of matter)
- The cost of establishing and maintaining a separate account for the benefit of the individual client
Generally speaking, if the interest to be earned by the funds would likely not be insignificant, then you should probably open a separate trust account for just that client. Otherwise, you would use your IOLTA pooled account.
A bank, savings bank, trust company, savings and loan association, credit union, or federally regulated investment company can hold your trust account. The institution must be authorized to do business in Iowa. All deposits must be federally insured. Your trust account must be in an institution with either its headquarters or a branch office physically located in Iowa. You should consider whether the institution has the amount of deposit insurance needed if your deposits for all accounts in that institution would exceed the FDIC insurance ceiling, convenience for banking, service charges and fees, interest rates payable, and return of cancelled checks or facsimiles thereof. You may use a credit union so long as the attorney administering the account is a member of the credit union.
Standard Insurance of $250,000 per Client, If:
- Account is Titled as "Trust Account"
- Client Subaccount Ledgers Show Interest of Each Client
Be aware of clients' personal accounts at same institution.
Choose a strong bank to do business with. It is a good idea to monitor the bank watch lists to ensure your bank is not on the list, for example. For deposits that will be on deposit for an extended period of time, you will want to split the funds over two or more banks to get coverage for the amount in its entirety. It is likely that the client would be entitled to the interest in this situation, under the provisions of Iowa Court Rule 45.4(3)(accounts generating positive net earnings). If a deposit is not going to be on deposit long enough to make splitting it up over several banks practical, just get the money in and out as soon as possible. Speed is your friend, in this situation. Electronic or wire deposits and transmittals are best for this purpose. If you routinely have deposits in excess of the insurance limit, you might consult with your banker regarding commercial deposit insurance. This is an expense that could be passed along to the clients, so long as you disclose it to your clients and address it in your fee or engagement agreement. Lastly, some clients will have their own deposits at the same bank where your trust account is located. It is imperative that you discuss the insurance issue with them to ascertain if their personal deposits will affect coverage for what you maintain for them in the trust account.
Your account agreement must allow withdrawals and transfers without delay whenever the deposited funds are required. In practice, a checking account or the functional equivalent works best.
Commonly used and allowable titles include using the name of the attorneys (e.g.“John Q. Lawyer Trust Account”) or the name of the law firm (e.g. “Rivers, Stream and Field L.L.P. Trust Account”.) You must include in the title of the account the words “Trust Account"
Yes, you need to inform the Office of Professional Regulation when you open a new trust account. This is best done by sending a letter with your new trust account information (name and address of financial institution, account number and title of account) to: Office of Professional Regulation, Attn: Lawyers Trust Account, Iowa Judicial Building, 1111 East Court Avenue, Des Moines, Iowa, 50319. Your trust account information is also reported and confirmed annually on your client security report form. If you create or change your trust account you have an affirmative duty to supplement or amend your answers on the client security report form within 30 days of the change or creation. The written notice mailed to us will function as that supplement.
You must direct the institution to perform the interest payment and reporting tasks required of IOLTA depositories no less often than quarterly. This can be done by giving them the IOLTA Instructions and Report Form (Doc). They need to be informed that service charges for purposes of the netting process only include the normal monthly service charge customarily assessed by the institution for the type of account involved. If the institution’s monthly service charge exceeds the IOLTA interest payable, the law firm is responsible for the excess. Charges associated with law firm activities with the account such as wire transfer fees or check printing charges, and other activity-based charges, may not be netted against IOLTA interest and are the law firm’s responsibility. The LTAC federal tax identification number is 42-1245104; this number must be used in connection with any IOLTA trust account. Lastly, the depository must agree to report overdrafts to the Client Security Commission.
Iowa Court Rule 45.5 allows financial institutions to charge an “allowable monthly service charge,” which means the monthly fee customarily assessed by the institution against a depositor solely for the privilege of maintaining the type of account involved. Fees or charges assessed for transactions involving the account, such as fees for wire transfers, stop payment orders, or check printing, are a lawyer’s or law firm’s responsibility and may not be paid or deducted from interest or dividends otherwise payable to the Lawyer Trust Account Commission.
Yes, a lawyer or law firm may maintain more than one trust account. Most lawyers only need to maintain one IOLTA trust account, however. Multiple trust accounts most often are used where circumstances dictate opening a trust account for an individual client under the provisions of rule 45.4(2)(a) in addition to the normal pooled IOLTA trust account.
Rule 45.2(3)(b) authorizes signature authority for an Iowa lawyer or a non-lawyer staff member directly supervised by an Iowa lawyer. That being said, signature authority for staff is NOT recommended. The funds are being entrusted to you in a fiduciary capacity. Personal responsibility and accountability for client funds is non-delegable; as the attorney you will likely be held personally responsible for staff defalcation. If you grant staff signature authority, consider adding an employee dishonesty rider on your casualty and liability policy.
Iowa Court Rule 45.11 allows a sole lawyer signatory to designate another Iowa lawyer as a stand-by signatory on his or her trust account, with that authority to become effective upon the occurrence of an event or events described in the instrument, which might include death, disappearance, abandonment of law practice, temporary or permanent incapacity, suspension, or disbarment. The new rule facilitates planning by sole practitioners for administration of their law practice in the event of their death or disability. Planning for death or disability is required on the part of all private practitioners, and the Rule 45.11 signature authority is a key component of this.
All funds of clients, regardless of size, including advances for costs and expenses and excluding only “general retainer” fees need to be deposited into your trust account. The decision on where to place funds is based on ownership at the time the funds are received. Common examples include:
- Any retainer except a "general retainer"
- Settlement proceeds that include the attorney's fee
- Real estate loan proceeds prior to closing
- Funds from the sale of property belonging to the client
If client funds are placed in IOLTA trust account, lawyer must inform client how interest is handled. This is best done in your written engagement agreement.
No funds belonging to the lawyer or the law firm may be deposited in the trust account. Common examples include:
- Fees already billed for and earned
- Funds an attorney holds that are not related to the practice of law
Exceptions to this rule include keeping some funds in the account which are reasonably sufficient to pay service charges or maintain a minimum balance to avoid service charges. You may also deposit funds belonging in part to a client and in part to the lawyer or law firm (such as a single settlement check) so long as the funds owed to the lawyer or law firm are withdrawn as soon as they are cleared.
Fees may and should be withdrawn as soon as they are earned and undisputed. Costs or expenses incident to services performed may be paid based on agreement with the client. Disbursements to close a real estate transaction or settle an injury claim may be made from the client subaccount. No payments for personal or office expenses should be made from a trust account.
Every deposit must be allowed to clear through the banking process before disbursement. Cash deposits, verified electronic transfers and bank certified checks support same day disbursement. Cashier’s checks should be allowed to clear completely. Personal checks and money orders should be allowed to clear completely.
Your own bank or financial institution can provide guidance regarding clearance times and can verify clearance. If a same-day closing or settlement is desired, the best solution generally will be to require that the deposit to your trust account be made by wire transfer or bank certified check.
Disbursements from a trust account must be made by check or by authorized bank transfer. Iowa Ct. R. 45.2(3)(b)(3). Any check drawn on the trust account must be payable to a named payee, and never to cash. Cash withdrawals from a trust account are not permitted. An authorized bank transfer contemplates the common forms of electronic banking transactions, including an authorized wire transfer, electronic fund transfer, or debit transaction.
Client must be given notice and an accounting regarding any withdrawal of trust funds for fees or expenses. Notice and accounting must be provided no later than the date the withdrawal is made. Advance fees and expenses must be refunded if the fee is not earned or the expense is not incurred
A flat fee must be placed in trust if paid in advance. Fee agreement should specify when, how, in what proportion fee may be withdrawn. Fee agreement must reasonably protect client’s right to refund if lawyer fails to complete work or client discharges lawyer. Remember that even with a flat fee, any withdrawals from trust require notice and accounting.
An advance for probate fees must be placed in the trust account like any other advance for fees. A court order approving the fees in probate must be entered by the district court before any fee can be taken from the trust account. Iowa R. of Probate 7.2. Also, a notice and accounting must be given to the client or clients no later than the day that any withdrawal of probate fees is made from the trust account. Finally, unless otherwise specially ordered by the district court, fees in probate can be taken no earlier than the following:
- ½ no earlier than after the federal estate tax return is prepared, or if a federal estate tax return is not required, no earlier than after the Iowa inheritance tax return is prepared, or if no inheritance tax return is required, no earlier than when the probate inventory is filed.
- The final ½ no earlier than when the final report is filed AND the costs are paid.
Specific trust account record requirements are listed in rule 45.2(3)(a). If you have trust account you need to retain the following records:
- Receipt and disbursement journals containing a record of deposits to and withdrawals from client trust accounts, specifically identifying the date, source, and description of each item deposited, as well as the date, payee and purpose of each disbursement;
- Ledger records for all client trust accounts showing, for each separate trust client or beneficiary, the source of all funds deposited, the names of all persons for whom the funds are or were held, the amount of such funds, the descriptions and amounts of charges or withdrawals, and the names of all persons or entities to whom such funds were disbursed;
- Copies of retainer and compensation agreements with clients as required by Iowa R. of Prof'l Conduct 32:1.5;
- Copies of accountings to clients or third persons showing the disbursement of funds to them or on their behalf;
- Copies of bills for legal fees and expenses rendered to clients;
- Copies of records showing disbursements on behalf of clients;
- The physical or electronic equivalents of all checkbook registers, bank statements, records of deposit, prenumbered canceled checks, and substitute checks provided by a financial institution;
- Records of all electronic transfers from client trust accounts, including the name of the person authorizing transfer, the date of transfer, the name of the recipient, and the trust account name or number from which money is withdrawn;
- Copies of monthly lists of individual client ledger balances and monthly triple reconciliations of bank statement balance to check register balance to sum of individual client ledger balances of the client trust accounts maintained by the lawyer; and
- Copies of those portions of client files that are reasonably related to client trust account transactions.
You need to maintain these books and records for at least six years after completion of the engagement to which they relate. A certification regarding this responsibility is included in the annual client security report.
Your receipt and disbursement journal for each trust account must chronologically show all deposits and withdrawals. There must be subaccount ledgers for each client (“client ledgers”) for whom the attorney holds funds. There should also be a subaccount ledger for nominal funds of the attorney held in the trust account to accommodate bank fees and charges. Copies of all written retainer and compensation agreements should be in the file, as well as copies of accountings to clients under rule 45.7 and copies of all bills rendered to clients.
You need to retain check registers, bank statements, canceled checks, voided checks, and duplicate deposit slips. Monthly trial balances of all subaccount ledgers must be made as well as a monthly reconciliation of checkbook balance, sub-account ledger trial balance total, and adjusted bank statement balance (known as a 3-way trust account reconciliation). Keep all receipts for all cash fee payments, preferably countersigned by the client. Include a memo or other document describing each electronic transfer transaction. Retain copies of those parts of client files reasonably related to trust account transactions. Lastly, make and retain a property record for all property other than cash (e.g. coin collection, firearms, jewelry).
A full 3-way reconciliation is required to be completed each month and retained with your other trust account records. The Client Security auditors will request this document when they audit your trust account. A template form is available at the end of the Trust Accounts Outline.
You perform a monthly triple reconciliation in the following manner:
- Balance each of the Subaccount Ledgers (client ledgers and also firm funds/ service charge ledger)
- Review for - and resolve - any negative balances in the Subaccount Ledgers
- Total the Subaccount Ledger balances
- Balance the General Ledger a/k/a Check Register
- Compute the adjusted bank balance based on bank statement, unprocessed checks
- Verify that the [total of subaccount balances] = [general ledger balance] = [adjusted bank balance]
Tip: A monthly bank statement with check and deposit images is a vital part of the reconciliation process. If your bank has been providing statements on a quarterly basis instead of monthly, you will need to a) arrange with the bank to receive a monthly statement or b) access monthly statement information electronically. Similarly, if your bank no longer automatically provides copies of check and deposit images, you will need to a) arrange with the bank to receive the images monthly or b) access and download the images electronically.
Lawyers or law firms may use computer systems to maintain trust account records. An attorney who maintains trust account records by computer should print and retain, on a monthly basis, the checkbook register, the balances of the subaccount ledgers, and the reconciliation report. Electronic records should be regularly backed up by an appropriate storage device. It is recommended that electronic records be kept in .pdf or some other format which will likely be accessible in the future.
Credit the full face value of the retainer. Address the card payment surcharge. Ensure credit card-based retainer is credited by bank and ineligible for charge-back, before taking any of the retainer. Best solution: card processer charges business account for all service charges and charge-backs, but allows routing of payments to trust account or business account based on nature of payment
There are a number of items to consider:
- Do you want to provide a notice and accounting each time an expense is paid, or periodically (perhaps monthly) on a consolidated basis?
- Do you want to pay expenses directly from the trust account, or advance fees on behalf of the client?
- What forms of payment will the court accept, and what form of payment do you want to use?
There are basically two techniques you can use, either of which is permissible:
- Direct Payment of Costs from Trust Account:
Get consent in engagement agreement regarding payment of expenses. Place the advance for expenses in your trust account. Open a client subaccount ledger card, record deposit on main ledger card for trust account and client subaccount ledger card. Pay the expense with a debit card or E*check that draws on the trust account. Retain or create a record of the debit deduction from the trust account. No later than the date of the payment, send the client a notice and accounting for the expense and deduction. Record the deduction on the main trust account ledger and the client’s subaccount ledger.
- Advancing Costs with Reimbursement from Trust Account:
Include consent in engagement agreement regarding advance and collection of expenses. Place the advance for expenses in your trust account. Open a client subaccount ledger card, record deposit on main ledger card for trust account and client subaccount ledger card. Pay the expense with a law firm credit card, or with a debit card or E*check that draws on the law firm business/operating account. On a periodic basis, write a check or make an ACH transfer from the trust account to the law firm business/operating account to pay all expenses advanced. If the law firm credit card is used for nothing except advanced expenses, the credit card statement could be paid directly by check drawn on the trust account. No later than the date of the deduction from the trust account, send each client for whom expenses were advanced and then collected a notice and accounting for the expense and deduction. Record the deductions on the main trust account ledger and on each client’s subaccount ledger.
If you have funds in your trust account that need to be returned to a client (known as “stale funds”), you first need to exercise due diligence to locate the client and attempt to return the funds to them or, in the case of a client’s death, their estate. If the client’s whereabouts are known but checks have gone uncashed, issuance of a certified check should be considered. If the client cannot be located, those monies should be considered unclaimed property and remitted to the Great Iowa Treasure Hunt.
Tip: Iowa Rule of Professional Conduct 32:1.15(d) requires that attorneys promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive. Ideally that would happen immediately at the conclusion of a matter, however that isn't always possible. Client Security's rule of thumb for prompt return is no more than six months for outstanding checks, and no more than one year for inactive client balances. A regular quarterly or biannual review process for stale checks and client balances is strongly recommended, so that due diligence can be undertaken and the sub-account can be zeroed out within that 6mo/1yr time frame.
You are not required to notify anyone before transferring trust account to a new bank. Ensure that all outstanding checks on the existing trust account are accounted for. Ensure that the old bank properly pays all interest owed the Lawyer Trust Account Commission. Then file a supplement or amendment to your client security report within 30 days after moving the account. This is best done by sending a letter with your new trust account information (name and address of financial institution, account number and title of account) to: Office of Professional Regulation, Attn: Lawyers Trust Account, Iowa Judicial Building, 1111 East Court Avenue, Des Moines, Iowa, 50319.
Not required to notify anyone before closing a trust account incident to leaving practice. Ensure that all outstanding checks are accounted for, and IOLTA interest will be properly disbursed. All monies owed clients must be returned to the clients entitled thereto. If a particular client cannot be found, it may be necessary to complete the “stale funds” procedure. File a supplement or amendment to your client security report within 30 days after closure. Retain the trust account records for at least 6 years.
Client Security Commission is authorized to perform trust account audits in rule 39.2(3). Each attorney is required to cooperate. Currently there are six part-time auditors. Goal is an unannounced periodic audit of each lawyer trust account every three to four years. Special audits are conducted as needed.
In recent years, would-be thieves have identified trust accounts as potentially lucrative targets. The schemes used to target trust accounts have become more sophisticated as electronic banking and international transactions have become more common.
Lawyers should be cautious regarding checks drawn on out-of-state or foreign banks, including certified checks and cashier’s checks drawn on such institutions. In recent years, the number of counterfeit or fraudulent checks presented to Iowa lawyers has increased. The common theme in these schemes is inducing you to deposit the counterfeit check in your trust account and make an immediate disbursement of a portion of the deposit back to the thief, before the counterfeit check is returned by your bank. Clearance times, particularly for checks drawn on foreign banks, are quite long. Some confidence artists provide an initial check drawn on a foreign (often Canadian) bank, and then follow up with another, more substantial check drawn on the same bank when the first check appears to have been honored due to the long clearance times on checks drawn on foreign banks. Soon after the second check has been deposited, the client’s circumstances change and they demand that the bulk of the second check be wired back to them expeditiously.
Tip: A countermeasure for this threat is to wait until the out-of-state or foreign check clears through the banking system.
Counterfeit Checks Drawn on an Out-of-State Law Firm Trust Account
An alternate scheme is to tender a check that appears to be drawn on the trust account of a lawyer in another state, but actually is counterfeit, and request your assistance with a business transaction that involves disbursement the same day the counterfeit check is deposited.
Tip: One possible countermeasure for this threat is to require an electronic deposit to your account if same day settlement is desired, and verify the deposit has occurred. An alternative countermeasure is to independently access the contact information for the law firm involved and verify that the trust account check is authentic. A countermeasure for this threat also is to wait until the out-of-state check clears through the banking system.
Keystroke Recording Implanted via Social Media
Social media sites are used by some thieves as a tool to implant keystroke logging or recording programs in the background on the computer used to access the social media site. The keystroke logging program communicates in real-time over the Internet with the thieves. When the user of the computer infected with the virus accesses an electronic banking website using that computer, the thieves are alerted. The thieves note the bank website address and login data, and quickly raid the bank account, transferring funds to an off-shore account.
Tip: A countermeasure for this threat is adoption of a law firm policy against accessing any social media site from any computer on the law firm network, but especially from any computer used for electronic banking. You may want to consider segregating the computer used for electronic banking from the remainder of the computers on your office network. You also may want to discuss with your bank the anti-fraud features the bank has available.
This is an ever evolving area as frausters change their techniques and new threats become apparent. However, some basics include making no disbursements until incoming check clears. Use no social media on law firm PCs – especially the PC used for banking. Buy, use and update software for financial malware and ransomware protection. Use an RSA token authentication for online access. Two person approval requirement for outgoing ACH transfers is highly, highly recommended. ACH Positive Pay – where the bank screens ACH debits—is worth having if your bank provides it, as is Regular Positive Pay – where the bank screens checks before making payment.
There are a number of steps that you need to take if you discover there has been an embezzlement from your trust account by one of your staff members. These are offered as suggestions and should not be considered exhaustive:
- End the employment of the employee involved
- Terminate all access by that employee to computer systems, online bank account sites, etc.
- Report the embezzlement to the county attorney
- Have a forensic accounting done for the business account and the trust account to determine the precise amount of the shortage, and from which account(s) and to have them reconstruct accurate client sub account ledgers
- Restore to the trust account any monies improperly taken from that account
- Implement security and overwatch systems to prevent a recurrence of the embezzlement
- Report the embezzlement to the Client Security Commission
- Report the embezzlement to your professional liability carrier and your casualty insurance carrier
Our auditors commonly find—and attorneys are often sanctioned for--failing to provide required notices and accountings to clients; having overages or shortages in their trust account balance; having shortages in their client subaccounts; having stale client balances; failing to disburse their legal fees when warranted; having stale outstanding checks; and making “unintentional” overdrafts.
There are three main factors which lead to irregularities in trust accounts and attorneys being disciplined. The first is simply the lack of sufficient attorney involvement in maintaining the trust account oversight. It is the responsibility of each attorney who uses the trust account to ensure it is being properly used. The second is the failure to perform monthly reconciliations. Failing to take an hour or two each month to perform the required monthly reconciliations is a quick way to run into trouble. The last fact is having untrained staff. The funds in the trust account do not belong to the firm, they belong to the client. Sometimes this distinction is overlooked by non-lawyers who see the funds as another pool of money for paying the firm’s bills or salaries.
The situation of client deposits exceeding the FDIC insurance limit also occurred before the advent of unlimited insurance coverage a few years ago. The key things to remember are that you owe your clients a high duty of care, but you are not an insurer. Also, it is perfectly fine to discuss the deposit insurance issue with the clients and let them help formulate a strategy. Finally, the deposit insurance limits apply per client, so long as your account is labeled a trust account and you have records showing the exact interest of each client in the account. With those considerations in mind, here are some thoughts:
- Choose a strong bank to do business with. It is a good idea to monitor the bank watch lists to ensure your bank is not on the list, for example.
- For deposits that will be around for an extended period of time, you will want to split the funds over two or more banks to get coverage for the amount in its entirety.
- If a deposit is not going to be around long enough to make splitting it up over several banks practical, just get the money in and out as soon as possible. Speed is your friend, in this situation. Electronic or wire deposits and transmittals are best for this purpose.
- If you routinely have deposits in excess of the insurance limit, you might want to talk with your banker regarding commercial deposit insurance. This is an expense that could be passed along to the clients, so long as you address it in your fee or engagement agreement.
- Remember that some clients will have their own deposits at the same bank where your trust account is located, so it is imperative to discuss the insurance issue with them to ascertain if their personal deposits will affect coverage for what you have in the trust account.
The jurisdiction of the work governs whether the funds arise from practice in Iowa. E.g., if the matter you are handling would be litigated in a forum in Iowa, the matter arises from Iowa practice and any client funds received would need to be placed in an Iowa trust account.
The practice of depositing funds received from clients for matters arising from practice in Iowa in a trust account located outside Iowa violates Iowa Court Rule 45.1, which provides in pertinent part:
Funds a lawyer receives from clients or third persons for matters arising out of the practice of law in Iowa shall be deposited in one or more identifiable interest-bearing trust accounts located in Iowa.
No exception or accommodation is included in the rule for attorneys who already maintain a trust account in another jurisdiction. The requirement of physical location of the account in Iowa helps ensure that interest payable under the Interest on Lawyer Trust Account (IOLTA) program will be properly paid to the Iowa Lawyer Trust Account Commission. In addition, physical placement of such accounts in Iowa ensures that the depository institution will be subject to the jurisdiction of Iowa courts and amenable to Iowa process and the audit processes of the Client Security Commission.
If you actually have not received any client funds for matters arising from the practice of law in Iowa, there is no need at this time to establish a trust account in Iowa. However, a trust account in Iowa must be established and used at the time you do receive client funds for matters arising from the practice of law in Iowa. Our trust account auditors do periodically perform audits to ensure compliance with this rule.
Monthly reconciliations of the main trust account ledger, client subaccount ledgers, and adjusted bank statement, the so-called “three-way reconciliation,” are required by Iowa Court Rule 45.2(3)(a)(9). The experience of the Client Security Commission is that failure to perform trial balances and reconciliations of client subaccounts on a monthly basis is a key contributor to loss of accountability for client monies.