Ethics Opinion 251
Safekeeping of Settlement Proceeds Claimed Both by the Client and a Third Person
When both the client and a third person claim an interest in settlement proceeds held by a lawyer in his IOLTA account, the portion of the proceeds in dispute should not be disbursed to the client if the lawyer reasonably believes that the third party has a just claim to such portion. These disputed proceeds should be retained in the account until the dispute is resolved. Any undisputed portion of the settlement proceeds must be distributed promptly to the parties entitled to receive such portions.
- Rule 1.15 (Safekeeping Property)
- Rule 1.6 (Confidentiality of Information)
The inquirer represents a client in a personal injury case who was treated at D.C. General Hospital. The District of Columbia Government paid the client’s medical expenses. The litigation was settled favorably for the client and the inquirer has received the settlement monies. The District Government, under D.C. Code § 3-507, et seq., [Health Care Assistance Reimbursement Act] has asserted a Medicaid lien over the settlement proceeds, seeking reimbursement of medical benefits paid by the District on the client’s behalf. Following settlement, the lawyer requested the District to reduce the amount of its lien because (1) some of the amounts reflected in the lien were for charges unrelated to his client’s accident-related injuries and medical care; (2) some of the accident-related charges were deemed excessive in a deposition given by the client’s D.C. General Hospital treating physician; and (3) the lien is subject to compromise under D.C. Code § 3-507(b). Either the District has refused, or has not responded to, this request. Inquirer’s client has asked inquirer to disburse all of the settlement proceeds directly to him. Inquirer notes that he expects his client to spend the money once it is received and asks whether he can, under the rules, hold the funds that are subject to the District’s lien in his IOLTA account.
Rule 1.15, Safekeeping Property, generally requires a lawyer to deliver promptly to the client or a third person any funds or other property that the client or a third person is entitled to receive.1 Comment  to Rule 1.15 acknowledges that other parties “may have just claims against funds or other property in a lawyer’s custody.” The comment states further that the lawyer “may have a duty under applicable law to protect such third party claims against wrongful interference by the client, and accordingly may refuse to surrender the property to the client.” In the case at issue, the District Government has asserted a statutory lien over a portion of the settlement proceeds. District law provides that, after receipt of a notice of a perfected Medicaid lien (presumably the case here), if certain persons dispose of funds without paying the amount necessary to satisfy the lien, that person is personally liable for one year for any amount that the District is unable to recover.2
Whenever the lawyer holds funds that he reasonably believes are subject to a perfected statutory lien, the lien should be considered to be a third party “just claim” against the funds held in the lawyer’s custody, as that term is used in Comment  to Rule 1.15. Under such circumstances, the lawyer should refuse to disburse the contested settlement proceeds to the client. Instead, the lawyer should hold the disputed funds until the dispute has been resolved.3 Of course, the uncontested portion of the proceeds should be promptly delivered to the client pursuant to Rule 1.15(b). Rule 1.15 and the comment thereunder recognize that, although the lawyer has a paramount obligation to the client, there may also be an ethical duty to third parties as to funds, in the lawyer’s possession, to which the third parties may be entitled.4
In cases where the lawyer holds disputed funds, he may at the client’s request attempt to resolve the dispute by negotiating with the party asserting the claim to the funds. Pending disposition of the disputed funds by an agreement of the parties or by court order, the inquirer must hold the contested proceeds pursuant to Rule 1.15(a). Upon request of the third party (or the client), the lawyer must render a full account as to the proceeds, subject to the confidentiality rules of Rule 1.6.
1. Rule 1.15(b) states:
Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this Rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property, subject to Rule 1.6.
2. D.C. Code § 3-507 provides:
If after receiving notice of the lien under paragraph (2) of subsection (d) of this section a beneficiary, third party, or an insurer of a third-party tortfeasor disposes of funds covered by a lien perfected under this section without paying the District the amount of its lien that could have been satisfied from those funds after paying off any prior liens, that beneficiary, third party, or insurer shall, for a period of 1 year from the date the funds were improperly disposed of, be liable to the District for any amount that, because of the disposition, it is unable to recover.
3. See, e.g., In re Cassidy, 89 Ill. 2d 145, 432 N.E.2d 274 (1982). The court held that the attorney could not be censured where he had not disbursed to his client settlement proceeds in his trust account on which third parties had liens.
4. Rule 1.15(b) and Comment . See also Leon v. Martinez, N.Y. Ct. App. No. 103 (7/7/94). In Martinez, the court rejected 4 the lawyer’s argument that he was obligated under DR 9-102 to pay his client the settlement funds in his possession and permitted the lawyer to be sued by third parties to enforce their claim for a portion of the settlement proceeds. The court concluded that the rule explicitly created ethical duties to third parties with respect to funds, held by the lawyer, to which the third parties may be entitled.