(b) The accounts required pursuant to paragraph (a) shall be maintained only in institutions that are listed as “D.C. Bar approved depositories” on a list maintained for this purpose by the Board on Professional Responsibility, unless (1) the account is permitted to be held elsewhere or in a different manner by law or court order, or (2) a lawyer holds trust funds under an escrow or similar agreement in connection with a commercial transaction. If a lawyer is a member of the District of Columbia Bar and practices law outside the District of Columbia, D.C. Bar approved depositories shall be used for deposit of any: (1) trust funds received by the lawyer in the District of Columbia; (2) trust funds received by the lawyer from, or for the benefit of, parties or persons located in the District of Columbia; and/or (3) trust funds received by the lawyer that arise from transactions negotiated or consummated in the District of Columbia.
To be listed as an approved depository, a financial institution shall
file an undertaking with the Board on Professional Responsibility, on
a form to be provided by the board’s office, agreeing promptly
to report to the Office of Bar Counsel each instance in which an instrument
that would properly be payable if sufficient funds were available has
been presented against a lawyer’s or law firm’s specially
designated account at such institution at a time when such account contained
insufficient funds to pay such instrument, whether or not the instrument
was honored and irrespective of any overdraft privileges that may attach
to such account. In addition to undertaking to make the above-specified
reports, approved depositories, wherever they are located, shall also
undertake to respond promptly and fully to subpoenas from the Office
of Bar Counsel that seek a lawyer’s or law firm’s specially
designated account records, notwithstanding any objections that might
be raised based upon the territorial limits on the effectiveness of
such subpoenas or upon the jurisdiction of the District of Columbia
Court of Appeals to enforce them. Such undertaking shall apply to all
branches of the financial institution and shall not be canceled by the
institution except upon thirty (30) days written notice to the Office
of Bar Counsel. The failure of an approved depository to comply with
its undertaking hereunder shall be grounds for immediate removal of
such institution from the list of D.C. Bar approved depositories.
(c) Reports to Bar Counsel by approved depositories
pursuant to paragraph (b) above shall contain the following information:
(1) In the case of a
dishonored instrument, the report shall be identical to the overdraft
notice customarily forwarded to the institution’s other regular
account holders.
(2) In the case of an
instrument that was presented against insufficient funds but was honored,
the report shall identify the depository, the lawyer or law firm maintaining
the account, the account number, the date of presentation for payment
and the payment date of the instrument, as well as the amount of overdraft
created thereby.
The report to the Office of Bar Counsel shall be made simultaneously
with, and within the time period, if any, provided by law for notice
of dishonor. If an instrument presented against insufficient funds was
honored, the institution’s report shall be mailed to Bar Counsel
within five (5) business days of payment of the instrument.
(d) The establishment of a specially designated account
at an approved depository shall be conclusively deemed to be consent
by the lawyer or law firm maintaining such account to that institution’s
furnishings to the Office of Bar Counsel all reports and information
required hereunder. No approved depository shall incur any liability
by virtue of its compliance with the requirements of this rule, except
as might otherwise arise from bad faith, intentional misconduct, or
any other acts by the approved depository or its employees which, unrelated
to this rule, would create liability.
(e) The designation of a financial institution as
an approved depository pursuant to this rule shall not be deemed to
be a warranty, representation, or guaranty by the District of Columbia
Court of Appeals, the District of Columbia Bar, the Board on Professional
Responsibility, or the Office of Bar Counsel as to the financial soundness,
business practices, or other attributes of such institution. Approval
of an institution under this rule means only that the institution has
undertaken to meet the reporting requirements enumerated above.
(f) Nothing in this rule shall preclude a financial
institution from charging a lawyer or law firm for the reasonable cost
of producing the reports and records required by this rule.
(g) Definitions:
“Law Firm” – Includes a partnership
of lawyers, a professional or non-profit corporation of lawyers, and
combination thereof engaged in the practice of law.
“Financial Institution” – Includes
banks, savings and loan associations, credit unions, savings banks and
any other business that accepts for deposit funds held in trust by lawyers
which is authorized by federal, District of Columbia, or state law to
do business in the District of Columbia or the state in which the financial
institution is situated and that maintains accounts which are insured
by an agency or instrumentality of the United States.
